1

Miss Juhi Gupta

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

(iv) 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 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:

1. 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.
2. 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.

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

1. 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.
2. 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.

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 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.

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.

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.

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 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 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 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 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.

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 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 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 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.

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 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 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.

Web Resources:

• <http://indiancourts.nic.in/ >
• Bar Council of India, Brief history of Law in India: <http://www.barcouncilofindia.org/> Society of Indian Law Firms, Indian Judicial System; < http://www.silf.org.in/> Reports:
• Lord Woolf, Access to Justice: Interim Report (Lord Chancellor’s Department,1995)
  <http://www.dca.gov.uk/civil/interim/chap1.htm> accessed 12 November 2014.
• Law Commission of India, Report on Amendment of Section 89 of the Code of Civil Procedure, 1908 and Allied Provision (238th Report, December 2011).
• Law Commission of India, Report on Costs in Civil Litigation (240th Report, May 2012).
• Law Commission of India, Need for Speedy Justice – Some Suggestions (221st Report, April 2009).
• The Report of the Committee on Reforms of Criminal Justice System, Government of
• India, Ministry of Home Affairs (April 2003). <http://www.mha.nic.in/hindi/sites/upload_files/mhahindi/files/pdf/criminal_justice_s ystem.pdf> (accessed 5 July 2014).