Law

Judicial Process and Administration

Structure of the Indian Judicial System
 Module Details

LAW
SUBJECT NAME:

JUDICIAL PROCESS AND

PAPER NAME: ADMINISTRATION

STRUCTURE OF THE INDIAN

MODULE NAME: JUDICIAL SYSTEM

JP/LAW/01/Q-I
MODULE ID:

Basic understanding of the scheme of the

PRE-REQUISITES: Constitution of India, of the function of
courts, and of the Indian political system
To understand the structure of the Union and
OBJECTIVES: the state judiciary.

Supreme Court of India, High Court,

KEYWORDS: subordinate judiciary, tribunals, Constitution
of India, original jurisdiction, appellate
jurisdiction, writ, contempt of court, Special
Leave Petition etc..
 Quadrant-I (E-Text)

STRUCTURE OF THE INDIAN JUDICIAL SYSTEM

1. INTRODUCTION

India has a unitary judicial structure with the Supreme Court, High Courts and Lower Courts
constituting a single, unified judiciary having jurisdiction over all cases arising under any law
whether enacted by Parliament or a state legislature. The Supreme Court is the apex court of
the land and every High Court is the apex court of the respective state. This structure is in
contrast to a dual system of courts, such as in the U.S., which has a federal judiciary with the
Supreme Court at the top along with a separate and parallel judicial system in every state. This
means that every state in the U.S. has its own Supreme Court. This distinction between the
federal judiciary and state judiciary creates a demarcation in that each cannot deal with matters
falling within the jurisdiction of its counterpart.

The hierarchical structure of the Indian judiciary can be represented in the form of the following
chart:
Learning outcomes:

The objective of this module is to familiarise the student with the following:

(i) Structure of the Indian judiciary,

(ii) Bases of jurisdiction,
(iii) Powers exercised by each rung of the judiciary, and
(iii) Issues and controversies that have arisen in the exercise of such powers.

2. UNION JUDICIARY

The Union judiciary is singularly composed of the Supreme Court of India (hereinafter “SC”)
which is established under article 124 of the Constitution as the highest Constitutional Court of
the land and guardian of the Constitution.

The SC, presently, consists of 31 judges including the Chief Justice of India (CJI). The Court
sits in smaller benches of two or three judges (Division Bench). The larger benches of five or
more judges (Constitution Bench) are constituted only when required to settle fundamental
questions of law as to the interpretation of the Constitution.

2.1 Jurisdiction and powers

2.1.1 Writ jurisdiction: Article 32

Article 32 constitutes the SC as the protector and guarantor of fundamental rights by conferring
it with the power to enforce them. As such, the writ jurisdiction is an integral part of the basic
structure of the Constitution.

Article 32(1) guarantees the right to any person whose fundamental right has been infringed to
move the SC to enforce the same. Therefore, the provision can only be invoked when there is
an infringement of a Fundamental Right. In order to enforce a Fundamental Right, judicial
review of administrative, legislative and governmental action or non-action is permissible.
However, article 32 cannot be invoked merely to adjudge the validity of any such action. While
considering a petition for enforcement of a Fundamental Right, the SC can declare a legislation
to be ultra vires or beyond the competence of the enacting legislature. As long as there is an
infringement of a Fundamental Right, the petitioner need not prove the exhaustion of all local
remedies or the absence of any adequate alternative remedy which are characterised more as
policies of convenience rather than rules of law.

Having said this, there have been a few exceptional cases where the SC has entertained writ
petitions not involving any Fundamental Right on the ground of the issues assuming great
Constitutional significance requiring authoritative determination by the SC and the absence of
any alternative mechanism for the SC to take cognisance of the matter. An instance of such
deviation from the general rule can be seen in Tamil Nadu Cauvery NVV NU P Sangam v Union
of India.1 Here the SC entertained an article 32 petition for a direction to the Government of

1
Tamil Nadu Cauvery NVV NU P Sangam v Union of India AIR 1990 SC 1316. Other examples of
matters where petitions were entertained under art. 32 having no relation to fundamental rights are:
misuse of the ordinance making power by the government of Bihar, DC Wadhwa v State of Bihar AIR
1987 SC 579; appointment of judges of the Supreme Court and High Courts, Supreme Court Advocates-
on-Record Association v Union of India AIR 1994 SC 268; and issues related with the procedure to
remove a Supreme Court judge, Sarojini Ramaswamy v Union of India AIR 1992 SC 2219.
India to refer the Cauvery water dispute to a tribunal after the petition remained pending for
more than 7 years. The court rejected the objection against its maintainability on the ground
that it would be too technical an approach and unfair and unjust.

The SC is not bound to follow the ordinary adversarial procedure under article 32 and may
adopt such procedure as most effective to enforce the fundamental right. The Constitution is
deliberately silent on this aspect in order to prevent procedural technicalities from hindering
the enforcement of fundamental rights and to preserve the SC’s discretion. The SC has
employed this discretion for the benefit of weaker sections of society by allowing relevant
material to be adduced through non-conventional sources such as letters as well as by
appointment of commissioners to gather facts and data.

Likewise, the matter of locus standi under article 32 lies within the realm of the SC’s discretion.
Over a period of time, the SC has taken a liberal view of this requirement and has come to adopt
a flexible view on a person’s entitlement to approach the Court under this provision.
Accordingly, it is not necessary that the victim of the violation of the fundamental right should
personally approach the SC for redress as the SC can itself take cognisance and proceed suo
motu or upon a petition filed by any public spirited person (natural or legal).2 The other liberal
dimension supplied by the SC is the power it has implied to award damages or compensation.
Thus, the SC has fashioned its power under article 32 as not only injunctive but also remedial
in character in order to maximise the efficacy of the provision.3

The SC also enjoys discretion in the matter of the relief to be granted. Article 32 (2) specifies
the writs the SC may issue:

I. Habeas corpus: Used to secure release of a person who has been detained unlawfully
or without legal justification. For example, this writ may be employed when a person
is not produced before a magistrate within 24 hours of his detention.

II. Mandamus: Used to command a public authority to perform a public duty belonging to
its office. For example, this writ can be used to command a tribunal to determine
questions which it is bound to but has omitted to decide.

III. Prohibition: Used to restrain completion of proceedings. For example, this writ can
be issued to restrain a tribunal from acting upon an unconstitutional law.

IV. Quo warranto: Used to call upon the holder of a public office to demonstrate to the
court the authority under which he is holding the office. For example, this writ may be
used to test the validity of the appointment of the Chief Minister of a State and the
nomination of members to the Legislative Council by the Governor.

V. Certiorari: Used to quash a decision taken by a lower tribunal when it has acted
without, or in excess of, its jurisdiction, or when there is an error apparent on the face
of record, or when findings of facts are not based on evidence, or when the principles
of natural justice have been violated, or when any fundamental right has been violated,
or when the law under which it has acted is itself unconstitutional.

The SC can frame writs to suit the exigencies of a particular situation and cannot dismiss a
petition merely because an incorrect writ has been sought for. Notwithstanding the specified
writs, the SC can grant any order, direction or declaration as it may consider appropriate in the
circumstances.

2
This feature is uniquely present in the context of Public Interest Litigation.
3
MC Mehta v Union of India AIR 1987 SC 1087; Common Cause v Union of India AIR 1999 SC 2979.
The SC retains the discretion to decide disputed questions of fact if it so desires, although
ordinarily it refrains from doing so. Article 32 being a fundamental right itself cannot be diluted
or whittled down by any legislation. However, the principles of res judicata and laches (or
inordinate delay) have emerged as important self-imposed limitations to this jurisdiction.

2.1.2 Contempt of court jurisdiction: Article 129

Article 129 establishes the SC as a ‘court of record’ entitling it to preserve its original record
in perpetuity. By virtue of being such a court, the SC has the power to determine any question
about its own jurisdiction and also has the inherent jurisdiction to punish summarily for
contempt of itself as the highest court of record, and of any high court, subordinate court or
tribunal as a court exercising appellate and superintending powers. This jurisdiction is of a
special nature. It is designed to preserve the dignity and integrity of courts and majesty of law,
enable administration of justice according to law in a regular, orderly and efficacious manner
by ensuring and enforcing compliance with orders and directions of courts, and empower courts
to inflict punishment for lapses in the same.

The jurisdiction contemplated under the Constitution is inalienable and cannot be taken away
or diluted by any legislation short of Constitutional amendment. It is for this reason that the
provisions of the Contempt of Courts Act 1971 are in addition to and not in derogation of the
Constitutional sanction. Contempt proceedings are quasi-criminal in nature taking place
between the State and alleged contemner which are either initiated suo motu by the SC or upon
an application by a party (private person or subordinate court). The litigation is not, strictly
speaking, adversarial in nature as the party notifying the court of the alleged contemnacious
conduct does not have the status of a litigant.

In summary, the SC ought to proceed by way of contempt only when there is real prejudice
which can be regarded as a substantial interference. It is an extraordinary power which must be
exercised sparingly and when demanded by public interest. It is important to note that in
contempt proceedings, the SC’s only concern is compliance with and not correctness of the
earlier decision. Some examples of what has been held to constitute contempt of court are:4

a) Insinuations derogatory to the dignity of the court which are calculated to undermine
public confidence in the authority and integrity of judges.
b) Wilful disobedience of or non-compliance with the court’s order.
c) Attempt by one party to prejudice the court against the other party.
d) Attempt to stir up public feelings on the question pending before the court and to
influence the judge/s.
e) Attempt to deflect the judge/s from performing their duty by flattery or veiled threat.
f) An act or publication which scandalises the court attributing dishonesty to the judge/s.

2.1.3 Original jurisdiction to determine inter-governmental disputes:

Articles 131 and 131A

Article 131 stipulates conditions under which the SC exercises original jurisdiction i.e. when it
is the first and only forum enjoying exclusive jurisdiction. This jurisdiction is triggered upon
satisfaction of the following:

 There must be a dispute between the parties mentioned in article 131 (a), (b) and (c) of
the provision, namely between the (a) Central Government and one or more states, or
(b) Central Government and any state/s and one or more states, or (c) two or more
states. Accordingly, this provision is not attracted when any citizen or private party is

4
CK Daphtary v OP Gupta AIR 1971 SC 1132; Brahma Prakash v State of Uttar Pradesh AIR 1954 SC
10; Hira Lal Dixit v State of Uttar Pradesh AIR 1954 SC 743.
 impleaded either jointly or in the alternative and when the Union of India is not
impleaded as the repository of the executive power of the Union.

 The dispute must involve a question (of law or fact) determining the existence or extent
of a legal right, as distinguished from a political right, such as questions involving the
validity of a central or state law, competence under Sch. VII of the Constitution etc.
However, the SC has clarified that there being no explicit mention of “suit” or “cause
of action” in the provision, the requirement in an ordinary civil suit that there must be
an infringement of a legal right of the plaintiff giving rise to a cause of action cannot
be imported to article 131. Therefore, it is immaterial whether some legal right of the
plaintiff has been infringed and whether the legal right in question is claimed by either
party.

 The question must not be one excepted by the proviso to article 131 or any other
provision of the Constitution, such as articles 262, 280, 290 and 143(2) read along with
the proviso to article 131.

Under article 131, the SC has the power, authority and jurisdiction to pass any order or issue
any direction as may be found necessary for the ends of justice since the original jurisdiction
has been conferred under special circumstances and for special reasons.

2.1.4 Appellate jurisdiction: Articles 132, 133, 134 and 136.

The SC is the highest court of appeal. Its appellate jurisdiction can be classified as follows:

(A) Appeals on Constitutional questions by certificate of High Court under Article 132(1):
The SC can hear appeals involving the interpretation of the Constitution arising out of any
proceeding in a High Court – civil, criminal or other – provided the High Court certifies to this
effect. A certificate may be granted only if (1) the case involves a question of law as to the
interpretation of the Constitution, an important inclusion in the certificate for then the appeal
will be heard by a Constitution Bench of 5 judges, (2) the said question is substantial, which in
this context refers to a question on which there is a division of opinion, and (3) the applicant
was a party to the case before the High Court.

Appellants are not entitled to challenge the propriety of the decision appealed against on a
ground other than that on which the certificate is granted except with the leave of the SC.

(B) Appeals not involving Constitutional questions:

(I) Appeals from civil proceedings by certificate of High Court under Article 133 (1): The
SC can hear appeals from a judgment, decree or final order in civil proceedings in a High Court
if the High Court certifies that (1) the case involves a substantial question of law of general
importance and (2) in the opinion of the High Court the question needs to be decided by the
SC.

A substantial question of law is one on which there exists, or which affords scope for, difference
of opinion. When there is divergence of opinion amongst the High Courts, the fact that the
rulings of the High Court from which appeal to the SC is sought are uniform or that there is no
direct decision of that High Court does not prevent the question from being a substantial
question of law. On the other hand, if there is no divergence of opinion amongst the High Courts
on a point of law, the mere fact that there is no decision of the referring High Court on the point
will not convert it to a substantial question of law.

However, the substantial question of law under this provision must be of general importance
which means that apart from the parties to the litigation, the general public should be interested
in the determination of the question. Examples of questions held to be of general importance
are the distribution of legislative powers between the Union and states, and revenue
implications affecting various states, 5 scope of the exercise of sovereign powers, 6 and
challenges to the validity of a statute.7

The High Court must be satisfied that the question needs to be authoritatively decided by the
SC, the words ‘needs’ suggesting that some imperative necessity must arise from the facts and
circumstances. For instance, such necessity can be said to exist when the High Court has taken
one of two possible views on the question, or has taken a different view, or has committed a
serious and flagrant violation of law.8

The certificate is not conclusive as to the right to appeal and the SC retains discretion to refuse
to entertain the appeal if it finds that the requirements of the provision have not been met.
Further, the SC does not ordinarily interfere with findings of fact that have become final or
those that are concurrent unless facts and circumstances compel it to do so, such as when there
has been a miscarriage of justice. The SC may grant leave to the appellant to raise a question
of law not covered by the certificate.

(II) Appeals from criminal proceedings under Article 134 (1): The SC can hear appeals
from any judgment, final order or sentence in criminal proceedings in a High Court.

Under article 134 (a) and (b), an appeal lies as a matter of right to the SC on both questions of
fact and of law. Accordingly, the SC is empowered to arrive at its own conclusion as to the
guilt of the accused and examine evidence only to the extent necessary to assess correct
application of principles by the High Court.

Conversely, an appeal under article 134 (c) of the provision does not lie as a matter of right; it
is instead subject to the grant of a certificate of fitness to appeal by the High Court. The SC will
not reassess any evidence or argument on a point of fact in the absence of any compelling
reason, exceptional circumstance or gross miscarriage of justice. The certificate must be
granted sparingly and in exceptional or special circumstances to ensure that High Courts are
ordinarily the final courts of criminal appeal and that the SC is not converted into an ordinary
court of criminal appeal. The High Court must determine the issue of law or principle which in
its opinion needs to be settled by the SC and such question must be apparent on the face of the
certificate. The correctness or propriety of the decision or order has no bearing in the
determination. Although general importance is not a mandated condition under article 134, a
certificate can only be issued when there is some error of fundamental character and the only
or primary question involved is not of fact or appreciation of evidence. The SC has laid down
that the certificate is only to be granted when there has been an infringement of essential
principles of justice, or some difficult questions of law of great public or private importance,
or when there has not been any fair trial in substance.9

A denial of a certificate under this provision does not preclude a party from applying to the SC
for special leave to appeal under article 136.

(III) Appeal by special leave of SC under Article 136: The SC enjoys a special plenary
appellate power for due and proper administration of justice by virtue of the discretion
conferred on it by article 136 to interfere in suitable cases. The Court has the power to grant

5
NDMC v State of Andhra Pradesh AIR 1976 Del 1.
6
N Nagendra Rao v State of Andhra Pradesh AIR 1994 SC 2663.
7
Inda Devi v Board of Revenue UP AIR 1957 All 116.
8
Union of India v Hafiz Mohd Said ILR(1973) Del 673.
9
Mohinder Singh v State AIR 1953 SC 415; State of Bihar v Bhagirath AIR 1973 SC 2198.
special leave to appeal (a) from any judgment, decree, determination, sentence or order, (b) in
any cause or matter, (c) passed or made by any court or tribunal in the territory of India.

The provision does not confer a right of appeal on any party and does not prescribe any
limitation as regards locus standi. The power is to be exercised very sparingly with care, caution
and circumspection and only when special circumstances are shown to exist. Further, this
extraordinary jurisdiction cannot be barred or limited by any legislation short of Constitutional
amendment.

The jurisdiction can be triggered upon the filing of a petition asking for special leave to appeal
which is known as a Special Leave Petition (SLP) or by a suo motu exercise of power by the
SC when it is satisfied that compelling grounds exist.

The exercise of jurisdiction consists of two steps: (1) Granting special leave to appeal, and (2)
hearing the appeal. The SC’s discretion at the first stage continues to the second stage.
Therefore, it may declare the law or point out the lower court’s error but still refrain from
interfering if special circumstances are not shown to exist.

The standards governing the exercise of the SC’s discretion under this provision has been the
subject of much adjudication before the court. The Court has repeatedly pronounced that its
discretionary power is plenary in that the provision opens with a non-obstante clause and the
power is not preceded with any qualifying words. However, the exceptional power is to be
exercised sparingly and only in furtherance of the cause of justice10 - “meant to be exercised on
the considerations of justice, call of duty and eradicating injustice”.11 It cannot be invoked in
a routine fashion but only in exceptional circumstances when a question of law of general public
importance arises or a decision sought to be impugned shocks the conscience of the Court.12
Many Constitution benches have cautioned that article 136 cannot convert the SC into a tribunal
or court merely settling disputes and reducing itself into a regular court of appeal.13

Notwithstanding repeated pronouncements to this effect, the SC itself has observed its tendency
to redeem justice in individual cases under article 136 despite the clear Constitutional overtones
that this jurisdiction is only intended to settle the law. In the words of the SC:14

“...the experience shows that such self-imposed restrictions placed as fetters on

its own discretionary power under article 136 have not hindered the Court from
leaping into resolution of individual controversies once it has been brought to
its notice that the case has failed to deliver substantial justice or has perpetuated
grave injustice to parties or is one which shocks the conscience of the Court or
suffers on account of disregard to the form of legal process or with violation
of the principles of natural justice. Often such are the cases where the judgment
or decision or cause or matter brought to its notice has failed to receive the
needed care, attention and approach at the hands of the Tribunal or Court
below, or even the High Court at times, and the conscience of this Court pricks
or its heart bleeds for imparting justice or undoing injustice. The practise and
experience apart, the framers of the Constitution did design the jurisdiction of
this Court to remain an extraordinary jurisdiction whether at the stage of
granting leave or at the stage of deciding the appeal itself after the grant of

10
Subedar v State of Uttar Pradesh (1970) 2 SCC 445.
11
Tirupati Balaji Developers Pvt Ltd v State of Bihar AIR 2004 SC 2351; Narpat Singh v Jaipur
Development Authority (2002) 4 SCC 666.
12
Arunachalam v PSR Sadanatham (1979) 2 SCC 297.
13
Pritam Singh v The State AIR 1950 SC 169; Bharat Bank Ltd Delhi v Employees Bharat Bank Delhi
AIR 1950 SC 188.
14
Jamshed Hormusji Wadia v Board of Trustees Port of Mumbai AIR 2004 SC 1815.
 leave. This Court has never done and would never do injustice nor allow
injustice being perpetuated just for the sake of upholding technicalities”.

Although the Constitution Bench in Pritam Singh v The State,15 observed that a more or less
uniform standard should be adopted in granting special leave, this has not materialised in
practice. The SC has expressed its difficulty in prescribing a ‘formula’ or ‘rule’ to guide the
exercise of its power. This was well brought out in Dhakeswari Cotton Mills v Commissioner
of Income Tax, West Bengal,16 where the Court held that the limitations on the power were
implicit in the nature and character of the power itself. Being an exceptional and overriding
power, it naturally has to be exercised with care and caution; beyond this it is not possible to
prescribe any fetters. It is however plain that technicalities cannot stand in the way to secure
justice because the whole intent of the provision is to ensure that injustice is not perpetuated or
perpetrated by decisions of courts and tribunals which have attained finality.

The barrage of cases under article 136 and the consequent compounding of the already clogged
dockets of the SC has not escaped the court, time and again warning that Artivle 136 cannot
open the floodgates of litigation.17 In Mathai @ Joby v George,18 the SC recommended the
constitution of a Constitution Bench to lay down broad guidelines to direct the exercise of
discretion under article 136.

Article 141 is attracted when the SC supplies reasons for dismissing a SLP whereas when the
petition is summarily dismissed, the SC does not lay down any law under article 141 and the
only conclusion to be drawn is that the SC decided that the case was not fit to grant special
leave.19

2.1.5 Review jurisdiction: Article 137

Article 137 envisages the SC to review any judgment pronounced or order made by it subject
to the provisions of any law made by the Parliament or any rules made under article 145. In
appropriate cases, the SC may pass an order ex debitio justitiae by correcting mistakes in the
judgment; however, these inherent powers can be exercised only when there is no other existing
provision in that behalf. The power of review is not tantamount or equivalent to appellate power
which means that the original matter cannot be reheard or the errors of the lower court/s
remedied.

A review petition must be filed within 30 days from the date of the judgment or order sought
to be reviewed and must clearly set out the grounds for review. Review jurisdiction must be
exercised with extreme care, caution and circumspection in only exceptional cases and in
observance of the grounds of review stipulated in Order 40 of the Supreme Court Rules 1966
drafted under article 145 (1) (e). According to these Rules, review of a judgment in a civil
proceeding is confined to the grounds mentioned in Order 47, Rule 1 of the Code of Civil
Procedure 1908 - (1) Discovery of new and important matter or evidence; (2) Mistake or error
apparent on the face of record; and (3) Any other sufficient reason. 20 Review of a judgment in
a criminal proceeding is confined to the ground of error apparent on the face of record.
Therefore, if a reasoning of the judgment sought to be reviewed is at variance with clear and

15
Pritam Singh v The State AIR 1950 SC 169; Bharat Bank Ltd Delhi v Employees Bharat Bank Delhi
AIR 1950 SC 188.
16
Dhakeswari Cotton Mills v Commissioner of Income Tax West Bengal AIR 1955 SC 65.
17
Bihar Legal Support Society v Chief Justice of India (1986) 4 SCC 767.
18
Mathai @ Joby v George 2010 (3) SCALE 172.
19
Indian Oil Corporation v State of Bihar AIR 1986 S.C. 1780.
20
The Code of Civil Procedure 1908, Order 47, Rule 1.
simple language in a statute, then the judgment suffers from a manifest error of law which is
an error apparent on the face of record and is therefore liable to be rectified.21

Having said this, in the landmark judgment in Mohd Arif v The Registrar, Supreme Court of
India, 22 the Court clarified two very important facets of its power of review: first,
notwithstanding the difference in phraseology in Order 40, Rule 1, it equated the scope of the
power in civil and criminal proceedings, stating that the purpose of the power is plain and the
interpretation of the power must naturally be expansive. “In fact, if anything, the concern of the
law to avoid judicial error should be heightened when life or liberty is in peril since civil
penalties are often less traumatic”. Therefore, the SC interpreted “record” to mean any material
already on record or subsequently brought on record with permission of the court. Second, it
carved out an exception to the bar on oral hearings in Order 40, Rule 3 for death penalty cases
holding that the fundamental right to life is the paramount factor which cannot be compromised
at any cost. Therefore, a limited oral hearing even at the review stage is mandated by article 21
in all death sentence cases.

Even after the dismissal of a review petition, a curative petition can be filed under the SC’s
inherent power seeking review of a decision which has become final after such dismissal on
very strong grounds such as variation of the principle of natural justice, question of bias and
abuse of process of court. Curative petitions have been subjected to stringent conditions and
procedural precautions – for example, the grounds must have been taken in the review petition,
and if a majority of a bench of three senior-most judges and the judges who passed the judgment
complained of conclude that the petition must be heard, it should be listed before the same
bench as far as possible.

2.1.6 Power to do complete justice: Article 142(1)

Article 142 (1) confers a plenary jurisdiction on the SC to pass any decree or make any order
which is necessary for doing complete justice in any cause or matter pending before it, civil or
criminal. The provision is conceived to meet situations which cannot be effectively and
appropriately addressed or resolved within the existing framework of law. Although enjoying
discretion of wide amplitude, the SC does observe some restrictions. For instance, the power
can only be exercised when the Court is otherwise exercising its jurisdiction. It is vital that the
order is necessary to administrate complete justice.23 The SC has demonstrated an inconsistent
attitude as regards the scope of the provision. On some occasions, it has categorically prevented
article 142 from supplanting statutory provisions unless equity and absolute necessity demands
otherwise; on other occasions, it has alluded to its power under this provision being on an
entirely different level to ensure “complete justice” and thus, which cannot be curtailed by
ordinary laws.24

2.1.7 Advisory jurisdiction: Article 143

Art. 143 empowers the President to consult and seek the opinion of the SC upon any question
of public importance as the President may think fit, whether of law or fact, which in his
estimation has arisen or is likely to arise. The President can only refer a question of law which
has not been decided by the SC. Examples of questions referred thus far by the President include
the constitutionality of an existing law,25 constitutionality of a bill presented to the President

21
Union of India v Namit Sharma AIR 2014 SC 122.
22
Mohd Arif v The Registrar Supreme Court of India 2014 (10) SCALE 84.
23
Prem Chand v Excise Commissioner AIR 1963 SC 996; AR Antulay v RS Nayak AIR 1988 SC 1531.
24
Supreme Court Bar Association v Union of India AIR 1998 SC 1895; Delhi Judicial Service
Association v State of Gujarat AIR 1991 SC 2176; Union Carbide Corporation v Union of India AIR
1992 SC 248; In re Vinay Chandra Mishra (1995) 2 SCC 621.
25
In re the Delhi Laws Act AIR 1951 SC 332.
for his assent,26 power of a Tribunal established under the Inter-State Water Disputes Act 1956
to grant interim relief,27 and whether a Hindu temple or religious structure existed at a particular
place.28

Under article 143 (1) of the provision, the SC retains the discretion to decline to express any
opinion on the question/s submitted to it such as when the question referred is political in nature,
or is incapable of being answered, or is vague or hypothetical. Similarly, the President is not
obligated to act upon the opinion delivered by the SC. However, if the SC does express an
opinion, the executive cannot request the SC to revise its decision as the advisory jurisdiction
is not tantamount to appellate jurisdiction of the SC over its own decisions.

However, under article 143 (2) of the provision, it is obligatory for the SC to entertain a
reference and deliver its opinion to the President.

An advisory opinion is generally understood to be binding on all lower courts. The SC however
remains free to re-examine and, if necessary, overrule its opinion. However, since it is not a
judgment, an advisory opinion does not furnish a good root of title.

Additional jurisdiction is conferred on the Supreme Court under articles. 138, 139 and 140.
Under article 138, Parliament may confer further jurisdiction and powers on the SC with respect
to any matter in the Union List. The SC shall also have such jurisdiction and powers with
respect to any matter as the Government of India and any state government may by special
agreement confer, if Parliament by law provides for the exercise of such jurisdiction. Under
article 139, Parliament may by law empower the SC to issue directions, orders or writs for any
purposes other than those mentioned in article 32. Under article 140, the Parliament may by
law confer supplemental powers on the SC not inconsistent with the Constitution as may appear
to be necessary or desirable for the court to exercise its jurisdiction more effectively.

3. STATE JUDICIARY

The state judiciary consists of a High Court (hereinafter “HC”) and a system of subordinate
courts.

3.1 High Courts

Article 214 establishes a HC for every state as the apex court in the state judicial system.
Parliament may however establish by law a common HC for two or more states under article
231. Presently there are 24 HCs with the following states having a common HC: Punjab and
Haryana, Andhra Pradesh and Telangana, and Assam, Nagaland, Mizoram and Arunachal
Pradesh (Guwahati HC). Within a state, a HC may sit in different benches in different cities.

The SC and HCs are constitutionally independent of each other as both are courts of record.
The HCs are not subordinate to the SC except for the purposes of the latter’s appellate
jurisdiction in which context the HCs exercise an inferior or subordinate jurisdiction.

3.1.1 Jurisdiction and powers

Unlike for the SC, the Constitution does not contain detailed provisions outlining and defining
the jurisdiction of HCs. Article 225 maintains the status quo existing on the date when the

26
In re Kerala Education Bill 1957 AIR 1958 SC 956.
27
In re Cauvery Water Disputes Tribunal AIR 1992 SC 522.
28
In re Ram Janmabhoomi (1993) 1 SCC 642.
Constitution came into force in respect of the jurisdiction and powers of HCs subject to
provisions of the Constitution and any law made by the appropriate legislature in pursuance of
its Constitutional powers. This is because HCs had been in existence much before the advent
of the Constitution and are institutions of respectable antiquity.

Accordingly, the HCs of Bombay, Calcutta and Madras continue to possess admiralty
jurisdiction which is also enjoyed by the Andhra Pradesh HC as the successor of the Madras
HC. HCs enjoy civil and criminal, ordinary and extraordinary, as well as general and special
jurisdiction. They exercise original jurisdiction in respect of testamentary, matrimonial and
guardianship matters as conferred by statutes. Several statutes confer advisory jurisdiction on
HCs.

3.1.2 Contempt of court jurisdiction: Article 215

Like the SC, HCs too are courts of record and have all powers of such a court including the
inherent power to punish for its contempt and of subordinate courts. Therefore, the transfer of
contempt proceedings from one HC to another HC is impermissible as this would deprive the
former court of the jurisdiction vested in it by the Constitution. This power is similar in content,
scope and nature to the corresponding power of the SC and is governed by analogous
considerations. Accordingly, HCs need to exercise the jurisdiction sparingly observing extreme
care, caution and circumspection and confine themselves to the question of compliance only.
They can take cognisance either suo motu or upon an application by a party.

By virtue of being superior courts of record, HCs possess the inherent power and duty of review
as a safeguard against miscarriage of justice to ensure that their record is devoid of any grave
or apparent errors and is in accordance with law.

3.1.3 Writ jurisdiction: Article 226

Article 226 confers an extraordinary and special jurisdiction on HCs to issue writs, orders or
directions. The provision extends the pre-Constitution grant, which was limited to the HCs of
Bombay, Calcutta and Madras, to all HCs. Similar to article 32 in its nature, article 226 provides
an important mechanism for judicial review of administrative, legislative and governmental
action or non-action. Article 226 (1) specifies the writs HCs may issue – mandamus, certiorari,
prohibition, quo warranto and habeas corpus.

The jurisdiction under article 226 is parallel to and independent of the jurisdiction under article
32 i.e. the jurisdiction of HCs is not in derogation of the SC’s jurisdiction. A self-imposed
policy limitation to this jurisdiction is the alternative efficacious remedy rule – when an
alternative and equally efficacious remedy is available to a litigant, he should pursue that
remedy first. While HCs are not bound by this rule, the existence of an adequate legal remedy
needs to be taken into consideration. 29 For example, when a statute stipulates remedies,
recourse should first be taken to this remedies and not to a writ petition.

A critical difference between both provisions is that while article 32 is restricted to the violation
of fundamental rights, article 226 empowers HCs to grant relief for the enforcement of any
Fundamental Right or “for any other purpose” as mentioned in article 226 (1), thus covering
even legal rights. The practical implication of this difference is that “person or authority” in
article 226 has been interpreted broadly. The term “authority” is also used in article 12 and the
question often raised before courts was whether the term “authority” in article 226 ought to be
interpreted in the same narrow sense as in article 12 or more broadly than that. The position is
that article 12 is only relevant for article 32 since the latter is restricted to enforcing fundamental
rights. Therefore, under article 226, writs may be issued to bodies which are not

29
Union of India v TR Varma AIR 1957 SC 882.
instrumentalities of the State. They may cover any person or body performing a public duty or
function. The nature of the body matters, not the form of the body.30

A HC can exercise writ jurisdiction when the person or authority to whom the writ is issued
has its location or residence within the HC’s territorial jurisdiction, or when the cause of action
either wholly or partly arises within the HC’s territorial jurisdiction as provided for in article
226 (2). It is the duty of the HC to ascertain whether any part of the cause of action has arisen
within its territorial limits which depends on facts and circumstances.

Writ jurisdiction is supervisory, and not appellate, in nature the primary purpose of which is to
enable HCs to judicially review the decision-making process rather than the decision itself.
Therefore, HCs are usually reluctant to delve into questions of fact; however, the decision to
enter into such an inquiry falls within the realm of their discretion.

Like the SC under article 32, even HCs have employed article 226 as a means to provide justice
to weaker sections of society, thereby exercising discretion to mould reliefs and liberalise locus
standi. HCs too have infused a remedial aspect into the provision by awarding compensation
or damages. While the rules of available alternative remedies and exhaustion of local remedies
are not inflexible, res judicata and laches have operated as self-imposed limitations to this
jurisdiction.

3.1.4 Superintending jurisdiction: Article 227

Article 227 confers the power of superintendence on HCs over all courts and tribunals within
their territorial jurisdiction to ensure that the latter act within the bounds of their authority and
according to law. The coverage of tribunals is significant given their proliferation in recent
times. The power extends to judicial and administrative matters and can be exercised suo motu
by HCs in the interest of justice even after a decision is declared to be final and conclusive. The
jurisdiction is supervisory, and not appellate in nature. It needs to be exercised sparingly and
not for correcting mere errors of law or fact. HCs will not interfere when a court or tribunal has
acted within its jurisdiction unless any grave miscarriage of justice or flagrant violation of law
has been committed. Further, HCs would normally not re-appreciate, review or reweigh
evidence after the same has been appreciated and questions of fact decided unless the
substantial portion of evidence relied upon suffers from serious infirmities or if any finding of
fact is not supported by conclusive evidence. The availability of an alternative remedy is not
an inflexible rule and does not operate as an automatic bar to the exercise of this power. In
addition, this jurisdiction is free from any statutory control or limitation.

As regards the relationship between Articles 226 and 227, an intra-court appeal from a single
judge to a Division Bench is possible in the former as proceedings fall on the original side
which is not the case for article 227. Since there are many situations where a petition can be
filed under both provisions, the practice is to treat a petition as having been filed under article
226 to protect the petitioner’s remedy of an intra-court appeal.

3.1.5 Constitutional question: Article 228

Article 228 allows the HC to withdraw a case pending in a subordinate court if it is satisfied
that the case involves a substantial question of law regarding the interpretation of the
Constitution, provided the determination of the question is necessary to dispose the case. The
HC may either dispose the whole case itself or only determine the Constitutional question and
return the case to the subordinate court for disposal in conformity with the HC’s determination.
The provision enables the HC to determine the Constitutional question at the earliest

30
Praga Tools Corp v CV Imanual AIR 1969 SC 1306.
opportunity. The language of Art. 228 is such that once the conditions mentioned therein are
satisfied, the HC is required to withdraw the case for itself.

4. SUBORDINATE JUDICIARY

Every state has a system of subordinate courts below the HCs. Articles 233 to 237 regulate the
organisation and guarantee the independence and integrity of subordinate courts which is very
important since it is in this segment in which the judiciary comes in close contact with the
people. Accordingly, these provisions have been interpreted to strengthen the control of HCs
and weaken executive control on the subordinate judiciary. Further, both the SC and HCs have
assumed power to punish for contempt of subordinate courts. Article 235 is the pivotal
provision vesting control in the HCs, the word “control” being used in the comprehensive sense
(administrative, judicial and disciplinary) and including the power of general superintendence.
The SC has consistently emphasised the need for HCs to exercise control in a bona fides,
judicious and non-arbitrary manner.

As regards the criminal judiciary, ordinarily the magistracy is under the control of the state
executive and not covered by the aforesaid Constitutional provisions. However, article 237
empowers the state executive to extend the provisions to any class of magistrates with such
exceptions and modifications as deemed fit.

The structure of the subordinate judiciary can be explained as follows:

Civil courts: In metropolitan areas, the Court of Small Causes takes cognisance of suits having
a value of up to Rs. 10,000. Suits having a value higher this are taken cognisance of by the City
Civil Court. Appeals from the Court of Small Causes lie to the City Civil Court, and appeals
from the City Civil Court lie directly to the HC.

In districts, the three tier structure consists of the District Judge and Additional District Judge
at top, followed by the Civil Judge Senior Division (or Assistant District Judge), followed by
the Civil Judge Junior Division (or Munsif). The Junior Division Judge can take cognisance of
suits having a value of up to Rs. 5 lakhs and the Senior Division Judge of suits having a value
of above Rs. 5 lakhs. Appeals lie to the District Court from decisions of the Senior Division
Judge for anything up to Rs. 10 lakhs, above which appeals lie to the HC.

Criminal Courts: In cities (metropolitan areas), the three tier structure consists of the Sessions
Court (Sessions Judge with or without Additional Sessions Judges and Assistant Sessions
Judges) at top, followed by the Court of Chief Metropolitan Magistrate (Chief Metropolitan
Magistrate with or without Additional Chief Metropolitan Magistrate), followed by the Courts
of Metropolitan Magistrates. There may also be Special Metropolitan Magistrates who exercise
all or any powers of a metropolitan Magistrate

In districts, the three tier structure consists of Sessions Court (Sessions Judge with or without
Additional Sessions Judges and Assistant Sessions Judges) at top, followed by the Court of
Chief Judicial Magistrate (Chief Judicial Magistrate with or without Additional Chief Judicial
Magistrate), and followed by the Courts of Judicial Magistrates of First Class and of Second
Class. There may also be Special Judicial Magistrates who exercise all or any of powers of a
Judicial Magistrate of First Class or Second Class.

The State Government may also point as many persons as it thinks fit as Executive Magistrates
in every district and metropolitan area and shall appoint one of them as District Magistrate
(with or without Additional District Magistrate). There may also be Special Executive
Magistrates.
A Sessions Judge or Additional Sessions Judge may pass any sentence authorised by law;
however, any death sentence is subject to confirmation by the High Court. An Assistant
Sessions Judge may pass any sentence authorised by law except a death sentence, or of life
imprisonment or of imprisonment for a term exceeding 10 years. The Chief Judicial Magistrate
may pass any sentence authorised by law except a death sentence, or of life imprisonment or of
imprisonment exceeding 7 years. The First Class Magistrate may pass a sentence of
imprisonment not exceeding 3 years or of fine not exceeding Rs. 10,000, or of both. The Second
Class Magistrate may pass a sentence of imprisonment not exceeding 1 year, or of fine not
exceeding Rs. 5,000, or of both. The powers of the Chief Metropolitan Magistrate correspond
to that of the Chief Judicial Magistrate, and the powers of a Metropolitan Magistrate correspond
to that of a First Class Magistrate.

TRIBUNALS

Articles 323A and 323B have aided the proliferation of tribunals which have emerged as an
integral component of the judicial system in India. A tribunal is typically a quasi-judicial body
which is constituted by and conferred inherent judicial power to adjudicate disputes by the
State, thereby having some trappings of a court.

Article 323A provides that Parliament may by law establish tribunals for adjudication of
disputes concerning recruitment and conditions of service of persons appointed to public
service. Article 323B empowers the appropriate legislature (Parliament or state legislature) to
provide by law for adjudication or trial by tribunals of any disputes and offences with respect
to matters specified in the provision.

Both provisions are enabling in nature providing the necessary Constitutional sanction for any
legislation creating tribunals. In addition, the provisions expressly safeguard the jurisdiction of
the SC under article 136. However, while both allow for the legislation to exclude the
jurisdiction of HCs in matters falling within the jurisdiction of tribunals, the SC ruled in L
Chandra Kumar v Union of India,31 that the jurisdiction under articles 226 and 227 cannot be
taken away since it is part of the inviolable basic structure of the Constitution. Therefore, all
decisions of tribunals created under articles 323A and 323B are subject to writ jurisdiction
under articles 226 and 227.

Parliament enacted the Administrative Tribunals Act 1985 in pursuance of article 323A setting
up the Central Administrative Tribunal to adjudicate upon service matters pertaining to central
employees. The Supreme Court has clarified that the power of Parliament to establish a tribunal
for any matter not covered by articles 323A and 323B is intact and protected under List I,
Schedule VII of the Constitution and its residuary powers.

In September 2014, a five judge Constitution bench of the SC struck down the National Tax
Tribunal Act 2005 as unconstitutional on the grounds that it encroached upon the exclusive
domain of the superior courts of record and the principle of separation of powers. 32 The statute
envisaged the creation of a National Tax Tribunal (NTT). The NTT would deal with and
expedite the settlement of tax-related matters of HCs and appeals against orders of the Income
Tax Appellate Tribunal (ITAT) and Custom Excise and Service Tax Appellate Tribunal
(CESTAT), thereby taking away the jurisdiction of HCs. The NTT never came into being since
the validity of the Act was challenged for suffering from excessive executive control and for
allowing the NTT to decide substantial questions of law.

While the SC upheld the power of Parliament to create tribunals, it held that tribunals must
have the trappings of a court. Responding to the primary contention that there was a fear that

31
L Chandra Kumar v Union of India AIR 1997 SC 1125.
32
Madras Bar Association v Union of India 2014 (11) SCALE 166.
the judiciary would be substituted by a host of quasi-judicial tribunals which function as
departments of various ministries, the Court held that the basic structure of the Constitution
will be violated if, while enacting legislation pertaining to transfer of judicial power, Parliament
does not ensure that the newly created court/tribunal conforms with the salient characteristics
and standards of the court sought to be substituted. A tribunal cannot substitute the HCs in their
appellate jurisdiction when it comes to deciding substantial questions of law. In a separate but
concurring judgment, Justice Nariman noted that the statute empowered the NTT to lay down
the law of the land which would be binding on all authorities and tribunals – this is a direct
encroachment on the jurisdiction of HCs to decide substantial questions of law which would
bind all tribunals.

5. SUMMARY

In summary, the structure of the Indian judiciary is stratified into various levels. At the top lies
the Supreme Court, which is followed by the High Courts at the state level and District Courts
at the district level. All courts exercise different powers falling within their respective civil and
criminal jurisdictions. Some jurisdictions are exclusive to a particular court – for example, only
the Supreme Court can exercise the jurisdiction to entertain SLPs under article 136 and advisory
jurisdiction under article 143 – while some types of jurisdiction are common to the SC and
HCs. Tribunals are quasi-judicial bodies established under various constitutional and statutory
provision having trappings of the court but cannot divest HCs of their jurisdiction under articles
226 and 227. While there are other judicial bodies which feature in the judicial system such as
Lok Adalats and Nyaya Panchayats, the aim of this lecture is to explain the unitary judicial
structure.