The Judiciary — Supreme Court & High Courts — Constitutional Law II Notes

The Supreme Court — Jurisdiction, Independence, Judicial Review, Precedent

In 1973, thirteen judges of the Supreme Court sat together for the longest case in its history — Kesavananda Bharati — and held that even Parliament cannot destroy the Constitution’s basic structure. No other court in the world had claimed such a power. That is the Supreme Court of India: the final word on what the Constitution means, and the guardian that can strike down even a law of Parliament.

The apex court and its jurisdictions

(See the General Introduction for Unit 3, folded in here: the Supreme Court sits at the apex of a single integrated judiciary and is the final interpreter and guardian of the Constitution. Its work reaches litigants through several jurisdictions; learn the jurisdiction map first, and the independence and precedent themes hang off it.)

The Supreme Court (Articles 124–147) is the highest court in the country. Its authority flows through five kinds of jurisdiction:

Original jurisdiction (Article 131). Disputes between the Centre and States, or between States come directly to the Supreme Court — no other court can hear them. Separately, Article 32 gives every person the right to move the Supreme Court directly for the enforcement of fundamental rights (also called its original writ jurisdiction).
Appellate jurisdiction (Articles 132–134A). Appeals come up from the High Courts in constitutional matters (Article 132, a substantial question of law as to interpretation of the Constitution), civil matters (Article 133), and criminal matters (Article 134). Under Article 136, the Court may grant special leave to appeal from any court or tribunal — a wide discretionary power.
Advisory jurisdiction (Article 143). The President may refer a question of law or fact of public importance to the Court for its opinion; the opinion is not binding but is highly persuasive.
Power to do complete justice (Article 142). The Court may pass any order necessary for “complete justice” in a case before it — a unique equitable power (used, e.g., in the Babri Masjid–Ayodhya land dispute).
Court of record & contempt (Article 129). It is a court of record and can punish for contempt of itself.

A. Judicial review — the guardian power

Judicial review is the power of the courts to examine the validity of a law or executive action and to declare it void if it violates the Constitution. It flows from the supremacy of the Constitution (Articles 13, 32, 226) and is itself part of the basic structure. It is the mechanism by which the Supreme Court keeps Parliament, the executive and the States within their constitutional limits.

B. Independence and binding precedent

Independence. The Court is kept independent by secure tenure (a judge holds office to age 65 and can be removed only by impeachment), a salary charged on the Consolidated Fund, a bar on practice after retirement in the same court, and a collegium-based appointment (see Topic 6).

Binding precedent (Article 141). “The law declared by the Supreme Court shall be binding on all courts within the territory of India.” A recurring exam question is whether the Supreme Court is bound by its own decisions — the answer is no: it may reconsider and overrule its earlier decisions (as held in Bengal Immunity v State of Bihar, 1955), though it does so with restraint.

Article 141: “The law declared by the Supreme Court shall be binding on all courts within the territory of India.”

In Simple Terms: The Supreme Court hears Centre–State disputes directly, hears appeals from High Courts (and, by special leave, from anywhere), advises the President when asked, and can do whatever is needed for complete justice. Its rulings bind every court in India — but it can change its own mind. Through judicial review it can strike down any law that breaks the Constitution.

🧩 WORKED EXAMPLE — criticising the Court: is it contempt?

Facts. A social activist publicly criticises a decision of the Supreme Court, calling the reasoning wrong. She is sought to be held guilty of contempt of court.

Rule. The Court is a court of record and can punish for contempt (Article 129), but fair and reasonable criticism of a judgment is not contempt; only conduct that scandalises the court or obstructs the administration of justice is (Contempt of Courts Act, 1971; S. Mulgaokar).

Apply. Criticising the reasoning of a judgment, even sharply, is legitimate comment and does not lower the authority of the court or obstruct justice. It becomes contempt only if it imputes corruption or motive to the judges, or scandalises the institution.

Conclusion. The activist is not guilty of contempt for mere criticism of the decision; she would be liable only if her words crossed into scandalising the court or obstructing justice.

flowchart TD
    ROOT["Supreme Court of India<br/>(Arts 124-147)"]:::root
    ROOT --> O["Original — Art 131 (Centre-State); Art 32 (FR)"]:::leaf
    ROOT --> AP["Appellate — Arts 132-134A; Art 136 SLP"]:::leaf
    ROOT --> AD["Advisory — Art 143 (President's reference)"]:::leaf
    ROOT --> CJ["Complete justice — Art 142"]:::leaf
    ROOT --> JR["Judicial review (basic structure)"]:::leaf
    ROOT --> PR["Binding precedent — Art 141 (not bound by itself)"]:::leaf
    classDef root fill:#FFF8DC,stroke:#000,stroke-width:1px,color:#000;
    classDef leaf fill:#E6F3FF,stroke:#1E3A8A,color:#000;
    linkStyle default stroke:#888,stroke-width:1px;

Case Laws

Bengal Immunity Co. v State of Bihar (1955) — the Supreme Court is not bound by its own previous decisions and may overrule them.
In re Special Reference No. 1 of 1964 (Keshav Singh) — illustrates Article 143 advisory jurisdiction.
S. Mulgaokar, In re (1978) — fair criticism of a judgment is not contempt; the power is used sparingly.
Kesavananda Bharati v State of Kerala (1973) — judicial review and the basic structure limit even the amending power (studied in Unit V).

The High Courts — Powers and Jurisdiction

In 1950, a citizen who could not reach Delhi still had a powerful court within his own State that could order a government officer to obey the law — the High Court, armed with the writ power of Article 226. That power, wider even than the Supreme Court’s, is why the High Court is often the citizen’s first and most effective protector.

The State’s highest court

Each State (or group of States/UTs) has a High Court (Articles 214–231) at the head of its judiciary. It is a court of record (Article 215) with the power to punish for its own contempt. Its jurisdiction has several limbs:

Writ jurisdiction (Article 226). The High Court can issue writs — habeas corpus, mandamus, prohibition, certiorari, quo warranto — for the enforcement of fundamental rights and for any other legal right. This is wider than Article 32, which is confined to fundamental rights. A litigant may approach the High Court where the cause of action arises, even if the authority sits elsewhere.
Power of superintendence (Article 227). The High Court has administrative and judicial superintendence over all courts and tribunals within its territory — it can call for records, frame rules, and correct grave errors of subordinate courts.
Original jurisdiction. In certain matters (company, admiralty, matrimonial, contempt, and enforcement of fundamental rights) the High Court hears cases at first instance.
Appellate jurisdiction. It hears civil and criminal appeals from subordinate courts.
Control over the subordinate judiciary (Articles 233–235). It controls the posting, promotion and discipline of district and subordinate judges (linking to Unit IV).

Independence. High Court judges hold office to age 62, are removable only by the same process as Supreme Court judges, and their salaries are charged on the State’s Consolidated Fund.

Article 226(1): “Notwithstanding anything in article 32, every High Court shall have power … to issue to any person or authority … directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari … for the enforcement of any of the rights conferred by Part III and for any other purpose.”

In Simple Terms: The High Court is the top court of a State. Its most powerful tool is Article 226 — it can issue writs not only to protect fundamental rights (like the Supreme Court) but for any legal right, making it broader. It also supervises every lower court and tribunal in the State under Article 227.

🧩 WORKED EXAMPLE — Article 226 vs Article 32

Facts. A citizen’s ordinary legal right (not a fundamental right) is violated by a State authority. He wonders whether to go to the Supreme Court under Article 32 or the High Court under Article 226.

Rule. Article 32 lies only for the enforcement of fundamental rights; Article 226 lies for fundamental rights and for “any other purpose” — i.e. any legal right.

Apply. Since only an ordinary legal right (not a fundamental right) is in question, Article 32 is not available, but Article 226 is — the High Court’s writ power is wider.

Conclusion. The citizen should approach the High Court under Article 226; the Supreme Court under Article 32 would not entertain a petition that raises no fundamental-right violation.

flowchart TD
    ROOT["High Court<br/>(Arts 214-231)"]:::root
    ROOT --> W["Writs — Art 226 (FR + any legal right)"]:::leaf
    ROOT --> S["Superintendence — Art 227 (all courts/tribunals)"]:::leaf
    ROOT --> O["Original jurisdiction (company, matrimonial, etc.)"]:::leaf
    ROOT --> AP["Appellate — civil & criminal"]:::leaf
    ROOT --> C["Control of subordinate judiciary (233-235)"]:::leaf
    classDef root fill:#FFF8DC,stroke:#000,stroke-width:1px,color:#000;
    classDef leaf fill:#E6F3FF,stroke:#1E3A8A,color:#000;
    linkStyle default stroke:#888,stroke-width:1px;

Case Laws

L. Chandra Kumar v Union of India (1997) — the High Court’s power of judicial review under Article 226 (and the Supreme Court’s under Article 32) is part of the basic structure and cannot be ousted, even for tribunals.
Waryam Singh v Amarnath (1954) — Article 227 gives the High Court both administrative and judicial superintendence over subordinate courts.

Appointment, Transfer & Independence of Judges

In 2015, the Supreme Court did something extraordinary — it struck down a constitutional amendment (the 99th) that had created the National Judicial Appointments Commission, and restored the collegium of judges as the body that appoints judges. The message was blunt: in India, judges have the primary say in choosing judges, because that is how their independence is protected.

Who chooses the judges, and how they stay independent

Why this matters. A court can only check the government if the government cannot pack it with pliant judges. So how judges are appointed and transferred is really a question about judicial independence.

Appointment (Articles 124, 217). Supreme Court and High Court judges are appointed by the President “after consultation with” the Chief Justice of India and other judges. The word “consultation” has been read, through three landmark cases, to mean the primacy of the judiciary:

First Judges Case (S.P. Gupta, 1981) — “consultation” did not mean “concurrence”; the executive had the upper hand.
Second Judges Case (1993) — reversed this: “consultation” means the CJI’s opinion has primacy, and appointments are made by a collegium of the CJI and senior judges.
Third Judges Case (1998) — clarified the collegium’s composition (CJI + four senior-most judges for the Supreme Court).
NJAC Case (2015) — struck down the 99th Amendment and the NJAC Act, holding that judicial primacy in appointments is part of the basic structure; the collegium continues.

Transfer of judges (Article 222). The President may transfer a High Court judge from one High Court to another after consultation with the CJI. A transfer must be in the public interest, not as punishment, and is made on the collegium’s recommendation (S.P. Gupta, Second Judges Case) — so that transfers cannot be used to threaten independent judges.

Tenure and removal — security of office. A Supreme Court judge holds office to age 65, a High Court judge to age 62. A judge can be removed only by impeachment (Article 124(4)): a motion supported by a special majority of each House (majority of total membership + two-thirds of members present and voting), on the ground of “proved misbehaviour or incapacity.” This near-impossible removal is a pillar of independence — no judge has ever actually been removed.

Other guarantees of independence. Salaries charged on the Consolidated Fund (not votable), conduct not discussable in Parliament except on a removal motion (Article 121), a ban on practising after retirement in the same court, and the contempt power to protect the court’s authority.

Article 124(2): “Every Judge of the Supreme Court shall be appointed by the President … after consultation with such of the Judges of the Supreme Court and of the High Courts … as the President may deem necessary … in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted.”

In Simple Terms: Judges are appointed by the President, but on the recommendation of a collegium of senior judges led by the Chief Justice — the judiciary, not the government, has the final say. Transfers are for public interest, never punishment. Once appointed, a judge is very hard to remove (only by impeachment for proved misbehaviour or incapacity) — all designed to keep judges fearless and independent.

🧩 WORKED EXAMPLE — appointing a judge without consulting the CJI

Facts. The President appoints a person as a judge of the Supreme Court without any consultation with the Chief Justice of India. Is the appointment valid?

Rule. Article 124(2) makes consultation with the CJI mandatory for appointing a judge (other than the CJI). Since the Second Judges Case (1993), “consultation” means the CJI’s opinion has primacy, exercised through the collegium; the NJAC Case (2015) reaffirmed this as part of the basic structure.

Apply. Here the President acted with no consultation of the CJI at all — a direct breach of the mandatory requirement of Article 124(2) and of the collegium primacy laid down by the Court.

Conclusion. The appointment is unconstitutional and invalid. Consultation with the CJI (through the collegium) is not a formality the President can skip; without it, the appointment cannot stand.

flowchart TD
    ROOT["Appointment, Transfer & Independence<br/>(Arts 124, 217, 222)"]:::root
    ROOT --> AP["Appointment: President + collegium (CJI primacy)"]:::leaf
    AP --> AP1["1st Judges (1981) -> executive primacy"]:::leaf
    AP --> AP2["2nd/3rd Judges -> collegium primacy"]:::leaf
    AP --> AP3["NJAC struck down (2015)"]:::leaf
    ROOT --> TR["Transfer (Art 222): public interest, not punishment"]:::leaf
    ROOT --> RM["Removal: impeachment only (proved misbehaviour/incapacity)"]:::leaf
    ROOT --> IND["Independence: fixed tenure, charged salary, Art 121"]:::leaf
    classDef root fill:#FFF8DC,stroke:#000,stroke-width:1px,color:#000;
    classDef leaf fill:#E6F3FF,stroke:#1E3A8A,color:#000;
    linkStyle default stroke:#888,stroke-width:1px;

Case Laws

S.P. Gupta v Union of India (First Judges Case, 1981) — “consultation” is not “concurrence”; initially gave the executive primacy.
[C-7] Supreme Court Advocates-on-Record Assn v Union of India (Second Judges Case, 1993) — established the collegium; the CJI’s opinion has primacy in appointments and transfers.
In re Special Reference (Third Judges Case, 1998) — the collegium is the CJI plus the four senior-most judges.
[C-7] Supreme Court Advocates-on-Record Assn v Union of India (NJAC Case, 2015) — struck down the 99th Amendment/NJAC; judicial primacy in appointments is basic structure.

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