The judiciary

In short

The judiciary is the organ of the Indian state that interprets the Constitution and laws, settles disputes, enforces fundamental rights and tests the validity of executive and legislative action. India has a single integrated judiciary — Supreme Court, 25 High Courts, and district and subordinate courts — administering one body of central and state law, unlike the dual federal-state court systems of the USA. It matters because judicial review, the basic structure doctrine and writ jurisdiction are the practical limits on government power in India. It is examined heavily in BA/MA Political Science papers on Indian government, and is core general-studies material for UPSC, state PSCs, CLAT/judicial services, and interview rounds for legal-process outsourcing, compliance, policy research, journalism and NGO advocacy roles.

Explained

Structure, independence and the constitutional scheme

• Integrated and unified: Articles 124–147 cover the Supreme Court, 214–231 the High Courts, 233–237 subordinate courts. One hierarchy — a district court applies both Union and state law, and appeals rise to the High Court and then the Supreme Court.
• Supreme Court strength: Chief Justice of India plus 33 judges (sanctioned strength 34, fixed by the Supreme Court (Number of Judges) Amendment Act, 2019). Seat is Delhi (Article 130), but the CJI may appoint another place with the President's approval.
• High Courts: 25 in all, some with jurisdiction over more than one state or Union Territory (for example Punjab and Haryana; Guwahati; Bombay). Sanctioned judge strength is just over 1,100, with roughly a quarter of posts vacant at most times — check the current Department of Justice figure before quoting.
• Safeguards of independence:
  1. Appointment is not purely executive (collegium process, below).
  2. Security of tenure — removal only by the hard procedure in Article 124(4).
  3. Salaries charged on the Consolidated Fund — not votable by Parliament; cannot be reduced except during a Proclamation of Financial Emergency.
  4. Article 121 / 211 — the conduct of a judge in the discharge of duties shall not be discussed in Parliament or a state legislature.
  5. Post-retirement bar — a retired Supreme Court judge cannot plead before any court or authority in India (Article 124(7)); a retired permanent High Court judge cannot plead or act in any court or before any authority in India except the Supreme Court and the other High Courts (Article 220).
  6. Contempt power — Articles 129 and 215 make the Supreme Court and High Courts courts of record.
  7. Separation of powers — Article 50 (a Directive Principle) asks the state to separate the judiciary from the executive; achieved through the Criminal Procedure Code reform of 1973 separating executive and judicial magistrates.
• Retirement: 65 years for a Supreme Court judge, 62 for a High Court judge. Proposals to raise the High Court age to 65 have been made repeatedly and not enacted.
• Salaries (High Court and Supreme Court Judges (Salaries and Conditions of Service) Amendment Act, 2018): CJI ₹2.80 lakh a month, Supreme Court judge and High Court Chief Justice ₹2.50 lakh, High Court judge ₹2.25 lakh, plus allowances. Revision is periodically proposed, so verify the current figure.

Appointment, transfer and removal

• Qualifications, Supreme Court judge (Article 124(3)): citizen of India, and either five years as a High Court judge, or ten years as an advocate of a High Court, or a distinguished jurist in the President's opinion — the third route has never been used.
• Qualifications, High Court judge (Article 217(2)): citizen, and either ten years in judicial office in India or ten years as an advocate of a High Court.
• The collegium, built by judicial interpretation of the word "consultation" in Articles 124 and 217:
  • First Judges case — *S.P. Gupta* (1981): "consultation" does not mean concurrence; executive primacy.
  • Second Judges case — *SC Advocates-on-Record Assn. v. Union of India* (1993): consultation means concurrence; the CJI's view, formed collectively, is determinative. The collegium is born.
  • Third Judges case — Presidential reference opinion (1998): collegium is the CJI plus the four senior-most Supreme Court judges for Supreme Court appointments; CJI plus two senior-most for High Court appointments, and CJI plus four senior-most for transfers of High Court judges.
  • Fourth Judges case — *SC Advocates-on-Record Assn.* (2015): the 99th Constitutional Amendment and the National Judicial Appointments Commission (NJAC) Act, 2014 struck down 4:1 as violating judicial primacy, part of the basic structure. The collegium revived.
• Process in practice: collegium recommends → Law Ministry and IB inputs → President appoints. The government may return a name once; if the collegium reiterates it unanimously, the convention is that the appointment must be made — but the government has sat on reiterated names for long periods, a live point of friction. The Memorandum of Procedure governing all this has been under revision since 2015 without finalisation.
• Transfer of High Court judges (Article 222): by the President after consultation with the CJI; upheld as permissible in the public interest but not as punishment.
• Additional and ad hoc judges: Article 224 (additional judges for up to two years, and acting judges; an acting Chief Justice is appointed under Article 223); Article 224A allows a retired judge to sit in a High Court with the President's consent — revived in recent years to clear arrears.
• Removal (popularly "impeachment") — Article 124(4), read with the Judges (Inquiry) Act, 1968:
  1. Motion signed by 100 Lok Sabha or 50 Rajya Sabha members, admitted by the Speaker/Chairman.
  2. Three-member inquiry committee (a Supreme Court judge, a High Court Chief Justice, a distinguished jurist).
  3. If misbehaviour or incapacity is proved, each House passes the motion by a majority of its total membership *and* two-thirds of members present and voting.
  4. President issues the removal order. No judge has ever been removed: Justice V. Ramaswami (1993) survived when Congress abstained; Justice Soumitra Sen resigned in 2011 after the Rajya Sabha passed the motion.
• Accountability gap: the in-house procedure, the Restatement of Values of Judicial Life (1997), and declaration of assets are voluntary/internal. The Judicial Standards and Accountability Bill, 2010 lapsed. Judges' judicial orders are outside the RTI Act's practical reach, though the Supreme Court held in 2019 that the CJI's office is a public authority under the RTI Act.

Jurisdiction of the Supreme Court

• Original (Article 131): exclusive jurisdiction over Centre–state and inter-state legal disputes. Excludes inter-state water disputes (Article 262, Inter-State River Water Disputes Act, 1956).
• Writ jurisdiction (Article 32): enforcement of fundamental rights — itself a fundamental right, called "the heart and soul of the Constitution" by Ambedkar. Cannot be suspended except under Article 359 during a National Emergency.
• Appellate: Article 132 (constitutional questions), 133 (civil), 134 (criminal — death sentence after the High Court reverses an acquittal, or after it withdraws a case to itself and convicts, or a High Court certificate under Article 134A), and Article 136 — Special Leave Petition, a discretionary, extraordinary power to hear an appeal from any court or tribunal except military tribunals. The SLP is the Court's largest docket.
• Advisory (Article 143): the President may refer a question of law or fact of public importance; the Court may decline (it declined the Ayodhya reference in 1993). Opinions are not binding as *res judicata* but carry great weight — used in the Third Judges case (1998), the 2G 2012 reference, the Berubari (1960) reference, and the 2025 Presidential reference on gubernatorial and presidential assent to Bills.
• Article 141: law declared by the Supreme Court is binding on all courts in India — the Indian rule of precedent (*stare decisis*). The Court is not bound by its own earlier decisions; a larger bench may overrule a smaller one.
• Article 142: power to pass any decree "necessary for doing complete justice" — used in the Bhopal gas settlement, the Ayodhya land arrangement, the ban on liquor vends near highways, and in *Shilpa Sailesh* (2023) permitting divorce by mutual consent without the statutory waiting period.
• Article 137: review of its own judgments; Article 139A: transfer and clubbing of cases raising the same questions; Article 144: all authorities must act in aid of the Supreme Court; Article 145(3): a minimum bench of five judges for substantial questions of constitutional interpretation.

Judicial review and the basic structure doctrine

• Judicial review = power to examine the constitutionality of legislative enactments and executive orders and declare them void if they violate the Constitution. Not stated in one article; drawn from Articles 13, 32, 131–136, 143, 226, 246 and 372. India's version is narrower than the American "due process" model (the Constituent Assembly chose "procedure established by law" in Article 21), but *Maneka Gandhi* (1978) read fairness into it.
• Grounds of review of administrative action: illegality, irrationality (*Wednesbury* unreasonableness), procedural impropriety, proportionality, and *mala fides*.
• Amending power and the doctrine's evolution:
  • *Shankari Prasad* (1951) and *Sajjan Singh* (1965): amendments cannot be challenged for violating fundamental rights.
  • *Golaknath* (1967): fundamental rights cannot be amended at all.
  • *Kesavananda Bharati* (1973), 13 judges, 7:6: Parliament can amend any part including fundamental rights, but cannot destroy the basic structure.
  • *Indira Nehru Gandhi v. Raj Narain* (1975): 39th Amendment clause insulating the PM's election struck down — free and fair elections and judicial review are basic features.
  • *Minerva Mills* (1980): clauses 4 and 5 of Article 368 (inserted by the 42nd Amendment) struck down — Parliament cannot give itself unlimited amending power or exclude judicial review.
  • *Waman Rao* (1981): the doctrine applies to amendments made after 24 April 1973.
  • *I.R. Coelho* (2007): laws placed in the Ninth Schedule after 1973 are open to basic-structure review.
• Illustrative basic features: supremacy of the Constitution, republican and democratic form, secularism, federalism, separation of powers, judicial review, Article 32, free and fair elections, rule of law, independence of the judiciary, parliamentary system, harmony between rights and Directive Principles. The list is open-ended and case-by-case — a frequent exam point.
• Landmark exercises of review: *S.R. Bommai* (1994) on Article 356; *Vishaka* (1997) on workplace harassment; *L. Chandra Kumar* (1997) restoring High Court review over tribunals; *K.S. Puttaswamy* (2017) recognising privacy under Article 21; *Shayara Bano* (2017) on instant triple talaq; *Navtej Johar* and *Joseph Shine* (2018); *Anoop Baranwal* (2023) on Election Commission appointments; the electoral bonds judgment (February 2024) striking the scheme down for violating the right to information; *Sita Soren* (2024) overruling legislators' immunity for taking bribes; *Davinder Singh* (2024) allowing sub-classification within Scheduled Castes.

The writs — the working tools of Articles 32 and 226

• Article 32 versus Article 226: Article 32 lies only for fundamental rights, and the Supreme Court cannot refuse relief (it is a guaranteed right); Article 226 is wider — fundamental rights plus legal rights and "for any other purpose" — but it is discretionary and territorially limited to the High Court's jurisdiction (including where the cause of action arose, by the 15th Amendment, 1963).
• Writs do not lie against a purely private body unless it discharges a public function; the Supreme Court held in 2016 that a writ petition under Article 226 is maintainable against a private body performing a public duty.

Judicial activism, PIL, and the criticism of overreach

• Public interest litigation grew from the relaxation of *locus standi* in *S.P. Gupta* (1981) and the Bhagwati–Krishna Iyer era: a public-spirited person, or the Court on its own motion (*suo motu*), can move for a disadvantaged group; even a postcard or newspaper report has been treated as a petition (epistolary jurisdiction).
• Gains: bonded labour (*Bandhua Mukti Morcha*), undertrial prisoners (*Hussainara Khatoon*), environmental law (*M.C. Mehta* series, the absolute-liability and polluter-pays principles), prison and police reform (*D.K. Basu*, *Prakash Singh*), food security, and the right to education before it became Article 21A.
• Limits and criticism: flooding of frivolous and publicity PILs (courts now impose costs), judicial legislation in guideline-making, encroachment on policy and budget choices, and lack of institutional capacity to monitor compliance.
• Distinguish three ideas: *judicial restraint* (deference to the elected branches), *judicial activism* (creative interpretation to secure rights), *judicial overreach* (crossing into executive or legislative functions). The last is the core charge in the collegium debate and in the 2025 advisory opinion on assent to Bills, where the Court held that no judicially fixed timeline can be imposed on the Governor or President and that "deemed assent" is impermissible — reversing the direction of the April 2025 Tamil Nadu Governor judgment. Verify the latest position as follow-up litigation continues.

Subordinate judiciary, tribunals, ADR and the pendency problem

• District judiciary (Articles 233–237): District Judges are appointed by the Governor in consultation with the High Court; recruitment to lower posts is through state Public Service Commissions/High Courts, but control and discipline vest in the High Court (Article 235). Civil side: District Judge → Senior Civil Judge → Civil Judge (Junior Division). Criminal side: Sessions Judge → Chief Judicial Magistrate → Judicial Magistrate First/Second Class.
• All India Judicial Service: Article 312 permits it; proposed since the 1960s, repeatedly recommended, and still not created because most states and High Courts object on federalism and language grounds.
• Tribunals: Articles 323A and 323B (42nd Amendment, 1976) — CAT, SAT, NCLT/NCLAT, NGT, ITAT, TDSAT, DRT, Armed Forces Tribunal. *L. Chandra Kumar* (1997) held that tribunals cannot oust High Court review under Articles 226/227; the Tribunals Reforms Act, 2021 abolished nine appellate tribunals and reset tenure and age, parts of which have faced further challenge.
• Alternative dispute resolution: Lok Adalats and legal aid under the Legal Services Authorities Act, 1987 (NALSA, SLSAs, DLSAs; Lok Adalat awards are final with no appeal); permanent Lok Adalats for public utilities; the Arbitration and Conciliation Act, 1996; the Mediation Act, 2023 introducing pre-litigation mediation; Gram Nyayalayas Act, 2008 (mobile village courts, far fewer established than sanctioned); Commercial Courts Act, 2015 (specified value of ₹3 lakh and above after the 2018 amendment, with pre-institution mediation); Fast Track Special Courts for rape and POCSO cases; Section 89 CPC referral to ADR.
• Pendency: roughly 5 crore cases are pending in all courts, the great bulk in the district judiciary, about 60–65 lakh in the High Courts and around 80,000–90,000 in the Supreme Court — the National Judicial Data Grid figure moves daily, so quote it as "about". Causes: judge vacancies, low judge-population ratio, adjournments, government litigation (the single largest litigant), procedural delay, and poor infrastructure. Remedies in progress: e-Courts Mission Mode Phase III (2023–2027), e-filing and virtual hearings, National Judicial Data Grid, case-flow management rules, and special courts.

Key points

• Integrated judiciary – one hierarchy of courts applying both Union and state law; contrast the US dual system.
• Article 124 – establishment, composition and appointment of the Supreme Court; sanctioned strength 34 judges.
• Article 32 – right to move the Supreme Court for enforcement of fundamental rights; a fundamental right itself.
• Article 226 – High Court writ power; wider than Article 32 but discretionary.
• Article 136 – Special Leave Petition, the Supreme Court's discretionary appellate gateway.
• Article 141 – Supreme Court law binds all courts; Article 142 – complete justice; Article 143 – advisory opinion.
• Collegium – CJI plus four senior-most judges (SC appointments); created by the 1993 and 1998 judgments, retained after NJAC was struck down in 2015.
• Basic structure – *Kesavananda Bharati* (1973): Parliament may amend but not destroy the Constitution's essential features.
• Minerva Mills (1980) – judicial review of amendments cannot be excluded; Article 368(4) and (5) void.
• Removal under Article 124(4) – only for proved misbehaviour or incapacity, by special majority in both Houses; never completed in India.
• Court of record – Articles 129 and 215; power to punish for contempt, governed by the Contempt of Courts Act, 1971 (civil and criminal contempt; truth is a defence after the 2006 amendment).
• Five writs – habeas corpus, mandamus, prohibition, certiorari, quo warranto.
• Judicial review – tests laws against Articles 13, 14, 19, 21 and legislative competence; narrower than US due-process review.
• PIL – relaxed *locus standi* from *S.P. Gupta* (1981); the engine of environmental and prisoners' rights law.
• Article 50 – Directive Principle on separation of the judiciary from the executive.
• Article 312 – enables an All India Judicial Service; still not constituted.
• L. Chandra Kumar (1997) – tribunals are subject to High Court judicial review.
• Pendency ≈ 5 crore cases with a judge-population ratio near 15 per million against the Law Commission's recommended 50.

Examples

• Example 1 — choosing the right writ. A municipal commissioner refuses to decide a statutory building-plan application; a state information commissioner continues in office after his term expired; a rent tribunal passes an order on a matter outside its jurisdiction; a man is held in police custody for four days without production before a magistrate. *Solution:* (a) refusal of a public duty → mandamus; (b) illegal continuance in a public office → quo warranto; (c) order already passed in excess of jurisdiction → certiorari (prohibition if proceedings are still pending); (d) unlawful detention → habeas corpus, filed under Article 226 before the High Court or Article 32 before the Supreme Court; production within 24 hours is required by Article 22(2).
• Example 2 — arithmetic of removal. A motion to remove a High Court judge is taken up after the inquiry committee finds misbehaviour proved. In the Lok Sabha (total membership 543) 480 members are present and voting; in the Rajya Sabha (total membership 245) 230 are present and voting. *Step 1 — Lok Sabha:* majority of total membership = 543/2 = 271.5 → 272; two-thirds of present and voting = (2/3) × 480 = 320. Both conditions must be satisfied, so the motion needs 320 votes. *Step 2 — Rajya Sabha:* majority of total membership = 245/2 = 122.5 → 123; two-thirds of 230 = 153.33 → 154. Requirement = 154 votes. *Step 3:* if the Lok Sabha gives 310 ayes, the motion fails even though a clear majority of the House voted for it. This is why no Indian judge has been removed.
• Example 3 — judge strength and the pendency gap. The district judiciary has about 25,600 sanctioned posts with roughly 20,000 judges working, against a population of about 142 crore and about 4.6 crore pending cases. *Step 1:* judges per million = 20,000 / 1,420 million = 14.1 per million (the Law Commission's 120th Report, 1987, recommended 50). *Step 2:* judges needed for 50 per million = 50 × 1,420 = 71,000 — about 3.5 times the present working strength. *Step 3:* average pendency per working judge = 4.6 crore / 20,000 = 2,300 cases. Even at 500 disposals a judge a year, clearing the backlog alone would take over four years with no fresh filings. Treat all four figures as approximate and verify from the National Judicial Data Grid.
• Example 4 — appeal route for a commercial dispute. A Pune company sues for ₹5 crore on a breached supply contract. *Step 1:* specified value exceeds ₹3 lakh, so the Commercial Courts Act, 2015 applies; pre-institution mediation under Section 12A is mandatory unless urgent interim relief is sought. *Step 2:* Bombay High Court has ordinary original civil jurisdiction, so the suit lies before its Commercial Division; in a state without such jurisdiction it would go to the Commercial Court at district level. *Step 3:* appeal to the Commercial Appellate Division within 60 days. *Step 4:* thereafter only a Special Leave Petition under Article 136 (ordinarily within 90 days), which the Supreme Court may refuse without reasons.
• Example 5 — testing an amendment. Parliament amends the Constitution to bar courts from examining the validity of any law on electoral funding. *Step 1:* Parliament's power under Article 368 is real but limited by *Kesavananda Bharati*. *Step 2:* free and fair elections (*Indira Nehru Gandhi*, 1975) and judicial review (*Minerva Mills*, 1980) are basic features. *Step 3:* the exclusion of review would therefore be struck down, and the voter's right to information under Article 19(1)(a) — the ground of the 2024 electoral bonds judgment — would reinforce the challenge. Conclusion: unconstitutional as violating the basic structure.

Where it is used

• Judicial services and litigation: civil judge and district judge examinations, High Court and Supreme Court practice, standing counsel for Union ministries, PSUs and state governments — the largest single litigant block in India.
• Legal process and compliance industry: LPO/KPO firms (Pangea3-type units, Cyril Amarchand's and Trilegal's support teams, EY/Deloitte forensic and regulatory practices) and in-house compliance teams tracking Supreme Court and High Court rulings on tax, labour and data protection.
• Regulatory and tribunal practice: NCLT/NCLAT insolvency work under the IBC, 2016, NGT environmental matters, TDSAT, ITAT, SEBI and CCI appellate work, CAT service matters.
• Policy research and advocacy: Vidhi Centre for Legal Policy, DAKSH, PRS Legislative Research, Centre for Policy Research, NALSA and state legal services authorities, Common Cause and ADR — organisations that litigate or analyse judicial data.
• Journalism and civil services: Supreme Court and High Court reporting (LiveLaw, Bar and Bench), and UPSC/state PSC general studies Paper II (Polity and Governance) and the interview board.
• Technology and administration: e-Courts Phase III implementation, NJDG analytics, e-filing and virtual-court products, and court record digitisation contracts.

Interview questions

• Q: What is meant by an "integrated judiciary" and how does India differ from the USA? A: India has one hierarchy of courts enforcing both Union and state law, headed by the Supreme Court; the USA has parallel federal and state court systems with separate jurisdictions.
• Q: State the basic structure doctrine and the case that established it. A: *Kesavananda Bharati* (1973) held, 7:6, that Parliament may amend any provision of the Constitution under Article 368 but cannot damage or destroy its essential features, such as judicial review, secularism and free elections.
• Q: How does Article 32 differ from Article 226? A: Article 32 is confined to fundamental rights but is itself a guaranteed right the Supreme Court cannot refuse; Article 226 covers fundamental and ordinary legal rights "for any other purpose", is discretionary, and is limited to the High Court's territory.
• Q: Against whom can mandamus not be issued? A: Against a private individual or body with no public duty, for a purely contractual obligation, or against the President and Governors in the discharge of their constitutional functions.
• Q: What is the collegium system and where is it written? A: It is the judges-appoint-judges mechanism read into "consultation" in Articles 124 and 217 by the Second (1993) and Third (1998) Judges cases; it appears in no constitutional text or statute.
• Q: Why was the NJAC struck down? A: In 2015 the Supreme Court held 4:1 that giving the Law Minister and two eminent persons a veto diluted judicial primacy in appointments, violating the independence of the judiciary as a basic feature.
• Q: Has any Indian judge ever been removed under Article 124(4)? A: No. Justice V. Ramaswami's motion failed in the Lok Sabha in 1993, and Justice Soumitra Sen resigned in 2011 after the Rajya Sabha passed the motion but before the Lok Sabha voted.
• Q: What does Article 142 allow, and why is it controversial? A: It lets the Supreme Court pass any order necessary for "complete justice", as in the Bhopal settlement and the Ayodhya decree; critics say it has been used to make policy and bypass statutes, which is why the Court itself has said it cannot override express statutory bars.
• Q: Distinguish judicial activism from judicial overreach with an example of each. A: Activism is creative interpretation to protect rights, such as reading privacy into Article 21 in *Puttaswamy* (2017); overreach is entering executive or legislative territory, as critics argued of court-ordered liquor-vend bans and fixed timelines for gubernatorial assent.
• Q: Can a High Court review a tribunal's order? A: Yes — *L. Chandra Kumar* (1997) held that Articles 226/227 review cannot be excluded, so tribunals are supplemental to, not substitutes for, the High Courts.
• Q: What is the difference between prohibition and certiorari? A: Prohibition is preventive, issued while proceedings are pending to stop a body exceeding jurisdiction; certiorari is curative, quashing an order already passed.
• Q: Name three measures actually in operation to reduce pendency. A: Lok Adalats and legal aid under the Legal Services Authorities Act, 1987; pre-institution mediation under the Commercial Courts Act, 2015 and the Mediation Act, 2023; and the e-Courts Mission Mode Project with e-filing, virtual hearings and the National Judicial Data Grid.

Common mistakes

• Calling the removal of a judge "impeachment" — the Constitution uses impeachment only for the President; for judges it is removal for proved misbehaviour or incapacity.
• Writing that the collegium is provided for in Article 124 — it is a judicial construction of the word "consultation", not a textual provision.
• Saying Article 32 can be used for any legal grievance; it lies only for fundamental rights, and the Supreme Court routinely directs petitioners to the High Court first.
• Mixing up prohibition and certiorari, or claiming habeas corpus cannot run against a private person — it can.
• Treating *Golaknath* (1967) as the basic structure case; it barred amendment of fundamental rights altogether and was superseded by *Kesavananda* (1973).
• Asserting a fixed list of basic features — the Court has deliberately kept it open and decides case by case.
• Quoting a stale pendency, vacancy or judge-strength number without saying it is approximate and dated; these figures change weekly.

Related topics

• The Indian Constitution (fundamental rights, Directive Principles, amendment) · Union executive and Parliament · Federalism and centre-state relations · Elections and the Election Commission · Rule of law and separation of powers · Human rights commissions and tribunals.