Module V- Judicial Systems

 ORGANS of administration: Legislative, executive Judiciary

 Process of framing legislation in legislative assemblies and parliaments
 Types of Courts :Civil courts :Muncif court I, Sub-court,district court, High Court and
Supreme court
 Criminal courts :Magistrate court , Sub-court, Sessions court , High court and Supreme
court
ORGANS OF ADMINISTRATION:
Legislature
It forms laws and procedures, along with examining the administration and its resolutions. The
chief function of the legislature is to enact laws.
 It is the basis for the functioning of the other two organs, the executive and the judiciary.
 It is also sometimes accorded the first place among the three organs because until and
unless laws are enacted, there can be no implementation and application of laws.
Executive
It comprised of the President or Governor, Council of Minister at Union or State level, along
with the administration which executes and enforces laws made by the legislature. The
executive is the organ that implements the laws enacted by the legislature and enforces the will
of the state.
 It is the administrative head of the government.
 Ministers including the Prime/Chief Ministers and President/Governors form part of the
executive.
Judiciary
The Supreme Court (SC) at the top level to the community courts at the bottom. They interpret
the laws made. The judiciary is that branch of the government that interprets the law, settles
disputes and administers justice to all citizens.
 The judiciary is considered the watchdog of democracy, and also the guardian of the
Constitution.
 It comprises the Supreme Court, the High Courts, District and other subordinate courts.

LEGISLATIVE
Of the three organs of the government, the place of primacy belongs to the Legislature. The
function of government begins by law-making and is followed up by law-enforcement and
adjudication functions. As such, the legislature is the first organ of the government.

Legislature: Meaning
‘Parliament’ means the place where deliberations are held. Combining the two views, we can
say Legislature or Parliament is that branch of government which performs the function of law
making through deliberations.

The legislature is that organ of the government which passes the laws of the government. It is
the agency which has the responsibility to formulate the will of the state and vest it with legal
authority and force. In simple words, the legislature is that organ of the government which
formulates laws. Legislature enjoys a very special and important in every democratic state. It is
the assembly of the elected representatives of the people and represents national public opinion
and power of the people.

Functions of a Legislature:

1. Legislative or Law-making Functions:

The first and foremost function of a legislature is to legislate i.e. to make laws. In ancient times,
laws used to be either derived from customs, traditions and religious scriptures, or were issued
by the kings as their commands. However, in the contemporary era of democracy, legislature is
the chief source of law. It is the legislature which formulates the will of the state into laws and
gives it a legal character. Legislature transforms the demands of the people into authoritative
laws/statutes.

2. Deliberative Functions:

To deliberate upon matters of national importance, public issues, problems and needs is an
important function of a modern legislature. Through this function, the legislature reflects the
public opinion over various issues. The debates held in the legislature have a great educative
value for the people.

3. Custodian of National Finances:

A near universal rule is that “the legislature of the state is the custodian of national purse.” It
holds the purse of the nation and controls the finances. No money can be raised or spent by the
executive without the approval of the legislature. Each year the executive has to prepare and get
passed from the legislature the budget for the coming financial year. In the budget, the executive
has to place the account of the actual income and expenditure of the previous year and estimated
income and expenditure for the New Year.
Not only the legislature passes the budget but also it alone can approve the imposition, or repeal
or collection of any tax whatsoever. Further, the legislature maintains a control over all financial
transactions and expenditures incurred by the executive.

4. Control over the Executive:

A modern legislature has the power to exercise control over the executive. In a parliamentary
system of government, like the one which is at work in India, for all its actions, decisions, and
policies, the executive is collectively responsible before the legislature. It is accountable before
the legislature. The legislature has the power to remove the executive by passing a vote of no-
confidence or by rejecting a policy or budget or law of the executive.

The Prime Minister and all other ministers are essentially the members of the legislature. They
are bound by the rules and procedures of the Parliament.

(b) In a Presidential form of government, like the one which is at work in the USA, the
legislature exercises some checks over the executive. It can appoint investigation committees to
probe the functioning of government departments. By the use of its power to legislate and pass
the budget, the legislature exercises a fair amount of control over the executive. Thus, whether a
political system has a parliamentary system or a presidential system, the legislature exercises a
control over the executive.

5. Constituent Functions:

In almost every state, it is the legislature which has the power to amend the constitution. For
this purpose legislature has to pass special laws, called amendments, in accordance with the
procedure laid down in the Constitution. In some states the requirement is that the legislature
must pass the amendment with 2/3rd or 3/4th or an absolute majority of votes.

6. Electoral Functions:

A legislature usually performs some electoral functions. The two houses of the Indian
Parliament elect the Vice-President. All elected MPs and MLAs form the Electoral College
which elects the President of India. In Switzerland, the Federal Legislature elects the members
of the Federal Council (Executive) and the Federal Tribunal (Judiciary).

7. Judicial Functions:

It is customary to give some judicial power to the legislature. Usually, the legislature is assigned
to act as a court of impeachment i.e. as an investigating court for trying high public officials on
charges of treason, misdemeanor and high crimes and remove them from office. In India, the
Union Parliament can impeach the President. It has also the power to pass a resolution for the
removal of Judges of the Supreme Court and of the High Court’s on the ground of misbehavior
or incapacity.

8. Ventilation of Grievances:

A legislature acts as the highest forum for ventilation of public grievances against the executive.
Besides representing every interest and shade of opinion, the legislature acts as the national
forum for expressing public opinion, public grievances and public aspirations. Parliamentary
debates and discussions throw a flood light over various issues of public importance.

9. Miscellaneous Functions:

Some legislatures are assigned specific executive tasks. For example, the US Senate (Upper
House of US Legislature) has the power to confirm or reject the major appointments made by
the US President. Likewise, it enjoys the power to ratify or reject treaties made by the US
President. In India, the

Rajya Sabha has been given the power to establish or eliminate any All India Service.
Legislatures also perform the function of approving or rejecting or amending all the policies and
plans made by the executive. In the US Constitution, the Congress (Legislature) enjoys the
power to declare war.

Thus the legislative organs of the government play a very important and active role in the
exercise of the sovereign power of the state. In fact legislature is the legal sovereign in the State.
It has the power to transform any decision of the state into a law. Legislature is the chief source
of law. It is the mirror of national public opinion and the symbol of the power of the people.

Types of Legislature: Bicameral and Unicameral Legislatures:

A modern legislature is either Bicameral or Unicameral. Bicameralism means a legislature with

two houses/chambers while uni-cameralism means a legislature with a single house/chamber. A
large number of modern legislatures, particularly of big states, are bicameral i.e. legislatures
with two houses (Bi = Two, Cameral = House).

However several states, mostly the small states and provinces of a federal system, have
unicameral legislatures, i.e. legislatures with single houses. Where the legislature is bicameral,
“the first house is usually called the lower house, and the second house is called the upper
house.

India, USA, UK, France, Russia, Switzerland, Australia and a large number of other states have
bicameral legislature. 22 states of India have bicameral legislatures.

The unicameral legislatures are working in China, New Zealand, Zimbabwe, Turkey, Portugal
and several other states. The state legislatures of all the Canadian and Swiss cantons
(provisions) are unicameral. In India, 6 states and 2 Union Territories have unicameral
legislatures…

Arguments in Favour of a Bi-cameral Or Arguments against a Unicameral Legislature:

1. Second Chamber is a Safeguard against the Despotism of a Single Chamber:

The second chamber of a legislature is essential for preventing the first house from becoming
arbitrary and despotic. A single chamber with all the legislative power can become corrupt and
despotic. The second chamber is needed for keeping it away from being arbitrary and despotic.

2. Second Chamber is essential for preventing Hasty and 111- Considered Legislation:

Second chamber prevents the passing of hasty and ill-considered legislation by a single
chamber. With a view to satisfy mass passions and demands, the single chamber can commit the
mistake of passing ill-considered measures in a haste, which can subsequently be a source of big
harm to the national interests. The second chamber prevents or at least considerably limits such
chances. It exercises a checking and modifying influence on the bill passed by the first house.

3. Second Chamber acts as a Revising Chamber:

The legislative work in the modern welfare state has become highly complex and technical. It
demands a deep and careful examination of all aspects of the measures which are to be enacted
into laws. The second chamber performs the role of a reviser. “When deliberations have to be
done, two heads are better than one.”

4. Second Chamber Lessens the Burden of the First House:

The emergence of welfare state has produced a manifold increase in the scope of law-making. A
modern legislature has to pass a large number of laws. Under the circumstances, a legislature
with a single chamber can fail to effectively pass all the legislative work. The second house is
needed for sharing the legislative work.
5. Two Houses Better Represent Public Opinion:

The two houses can together correctly act as the barometer of public opinion. A single house
can grow out of tune and fail to keep in harmony with public opinion. The second house chosen
at a different time can help the legislature in overcoming the above defect.

6. Essential for giving Representation to Special Interests:

The second chamber provides a convenient means for giving representation to different classes
and interests which need representation. The lower chamber can consist of the elected
representatives of the people as a whole, and the upper house can give representation to the
minorities and special interests and groups like the Labour, women, scientists, artists, teachers,
intellectuals, writers, chambers of commerce.

7. Delay is Useful:

The critics of the second chamber often argue that it is a source of delay in the passing of laws.
Undoubtedly, the passing of laws by two houses leads to some delay. However, this delay is
very useful. It helps the crystalisation of public opinion on all bills before they become laws.
The existence of second chamber acts as a source of delay between the introduction and final
adoption of a law and thus permits time for reflection and deliberation.

8. Essential for a Federation:

A bi-cameral legislature is considered essential for a federal system. In such a system, the lower
house gives representation to the people of the state as a whole and the upper house gives
representation to the units of the federation.

9. Instrument for Utilising the Services of the Able and the Experienced Persons:

A second chamber makes it possible for the state to use the political and administrative ability
of such people, who for certain reasons are not in a position, or are not quite willing to enter the
lower house through elections. The second chamber can, as such, help the induction of
experience and ability into the legislature.

10. Second Chamber is a Source of Stability:

The second chamber can be given a longer and continuous term for securing stability. The lower
house, being the representative of the people has to be given a shorter tenure. As against this,
the second chamber can be given a longer tenure and a permanent or quasi-permanent character
for ensuring some stability. It has been due to such a consideration that a member of Indian
Rajya Sabha has six year tenure and this house has a quasi- permanent character—it is never
dissolved as a whole and only l/3rd of its members retires after every two years.

11. Historical Support:

History supports the case in favour of bicameralism. The successful working of bicameral
legislatures in various states of the world is an accepted fact. No major state, whatever its form
of government, has been willing to dispense with the second chamber. “The experience of
history has been, in favour of two chambers. It is not wise to disregard the lesson of history.”

On the basis of all these arguments, the supporters of bi-cameral legislature build a very strong
case. They reject the case for unicameralism.

Arguments against Bicameral Legislature or Arguments in favour of Unicameral

Legislature:

The critics of bi-cameralism and supporters of uni-cameralism, however, reject the thesis that
second chamber is essential. They oppose it as a superfluous chamber which always results into
more disadvantages than advantages.

Bicameralism is opposed and uni-cameralism is supported on the basis of the following

arguments:

1. Two Chambers Confuse Public Opinion:

The critics argue that public opinion is one and can be represented by a single chamber.
Sovereignty is one. People are sovereign. Their will is one and cannot be divided. They are best
represented by a single chamber. Two chambers confuse public opinion, particularly when one
chamber disagrees with the second chamber.

2. Second chamber is either Mischievous or Superfluous:

Abbie Sieyes holds that the second chamber is either mischievous or superfluous. If the second
chamber dissents from the first, it is mischievous; if it agrees with it, it is superfluous. This
argument assumes that the popular will is represented by the lower house.

3. Problem of Organising the Second Chamber:

It is a universal rule that the first house should be a directly elected representative house of the
people. However, there exists no consensus regarding the organisation of the second chamber.
Different bases have been adopted by different states, but the results have been not encouraging.

The hereditary and nominated character of the British House of Lords has made it a secondary
and almost useless house. The US Senate, because of its small size and long” tenure, has
become more powerful than the US House of Representatives.

The Indian experiment of striking a balance, by making the Rajya Sabha neither as powerless as
the British House of Lords nor as powerful as the US Senate, has also failed to produce the
desired results. The Rajya Sabha has not been successful in exercising desired control or in
sharing the burden of the Lok Sabha. As such, there exists no sound method for organising the
second chamber.

4. No Law is passed in a Hurry:

In the prevailing system of law-making in which a bill has to go through several stages before
getting a place in the statutes book, there is no need for a second house. The system of Law-
making as it operates today eliminates the chances of ill-considered and hasty legislation by a
single chamber. Hence, the second chamber is not needed.

5. Source of Delay in Legislation:

The second chamber is always a source of unwanted delay. A bill has to pass through several
stages in the first house before getting passed. When it goes to the second house, it has to again
pass through a similar process. It causes unwanted and harmful delay. In this process, the
legislation gets unnecessarily delayed.

6. Revision of the Bill by Second House is Unnecessary and Useless:

The critics of bi-cameralism reject the argument that the second house is needed for revising the
bill.

They argue:

(i) The revision is unnecessary because the bill is revised thrice by the first house before it is
passed;

(ii) The emergence of well organised committee system has made the revision of the bill by
second house redundant; and
(iii) Since all discussions in the second house too are held on party lines, no really objective or
additional revision is done during the discussions. As such, there is neither the need for nor any
use of the so called revision done by the second house.

7. The Second Chamber is not in a position to check the Despotism of the First House:

The opponents of bi-cameralism hold, that in actual practice, the second chamber is never in a
position to check the so called despotism of the first chamber. It merely works as a delaying
house or a slowing-down chamber. The Indian Rajya Sabha can only delay a money bill for 14
days only and an ordinary bill for a little longer duration.

8. Second Chamber is mostly a Conservative and Reactionary Chamber:

It is alleged by the critics of the second chamber that it is generally citadels of reaction and
conservatism. It acts as a brake on the wheels of democracy. The practice of giving
representation to minorities and special interests makes the second chambers reactionary and
conservative houses. The second chamber is usually dominated by the rich businessmen,
capitalists, landlords and the ‘elitist’ sections of society.

9. Special Interests can be represented in the First House:

The supporters of unicameral legislatures advocate that the special interests of minorities and
weaker sections of society can be given representation in the lower house without any loss. This
can be done without disturbing the nature and character of the membership of the house as
determined by the people through elections.

10. Second Chamber is not essential for a Federation:

The importance of second chamber as the representative of the units of a federation has also lost
its relevance because of the role of political parties in the political system. Political parties now
dominate the entire political life of every state—federal as well as unitary or non-federal. Since
every election is fought on party basis, the second chamber too represents party interests and not
the units of the federation.

11. Increased Expenses:

The existence of two chambers means more burdens on the finances of the state without much
use, because the second chamber almost always fails to perform its due role in the legislative
process. The second chamber entails heavy expenditure and renders no useful purpose.
On the basis of all these arguments, the supporters of uni-cameralism strongly advocate the case
for single chamber legislatures. They reject bi-cameralism as unnecessary, less-useful, and an
unwanted expensive system which seriously limits the legislative work.

After examining both sets of arguments, we can conclude that the case in favour of a bicameral
legislature or bicameralism is qualitatively stronger than the case for unicameralism.

It can be stated that the national legislatures should be bi-cameral because of the importance of
the work that these have to undertake. In the case of a federation also, it is more advantageous
to have a bicameral legislature than a uni-cameral one. The second house, as the representative
of the federal units serves as a source of strength for the health of a federal state.

Above all, the lesson of history has been clearly in favour of bi-cameralism. Bicameral
legislatures have proved to be more effective and useful than the unicameral ones.

However for small states and for the member units (provinces or states) of a federation,
unicameral legislatures can serve the purpose. In India, we have both bicameral as well as
unicameral legislatures at the state level.

EXECUTIVE

The second but most powerful organ of the government is the Executive. It is that organ which
implements the laws passed by the legislature and the policies of the government. The rise of
welfare state has tremendously increased the functions of the state, and in reality of the
executive. In common usage people tend to identify the executive with the government.

What is Executive?

In its narrow form, it is taken to mean only the executive heads (ministers i.e. the political
Executive), who head the government departments, formulate the policies and supervise the
implementation of the laws and policies of the government. In the narrow form, the civil service
and its administrative functions are not included in the realm of the Executive.

Traditionally, only the narrow meaning used to be accepted by the political scientists. However,
in modern times, the executive is defined in its broader form and it covers both the Political
Executive as well as the Civil Service.

Executive: Definition:
(1) “In a broad and collective sense, the executive organ embraces the aggregate or totality of all
the functionaries and agencies which are concerned with the execution of the will of the state as
that will has been formulated and expressed in terms of law.” Garner

(2) “In its broadest sense, the executive department consists of all government officials except
those acting in legislative or judicial capacity. It includes all the agencies of government that are
concerned with the execution of states will as expressed in terms of law.” Gettell

These two definitions make it clear that executive includes the political executive (Ministers and
Head of State) and the non-political permanent executive (Civil Service or Bureaucracy). The
political executive performs the function of making policies and ensuring that all the laws are
properly enforced by all the departments of the government.

The permanent executive i.e. bureaucracy/civil service runs the day-to- day administration and
works in government departments. It works under the supervision and control of the political
executive.

Two Parts of Executive: Political Executive & Permanent Executive: Distinction:

(i) The Political Executive (Ministers):

It consists of the executive head of the state and other heads of the executive departments is
ministers. Ministers are political leaders. They are mostly elected representative of the people
and responsible for all their decisions and policies before the public. Political Executive work
for a fixed tenure of about 5 years.

It acts as a temporary executive in the sense that it changes after every election. After
completing one tenure, ministers have to again contest elections. They can again become
ministers only when the party to which they belong returns to power as the majority party.

The ministers are amateurs, non-experts and non-professionals. Their function is to formulate
policies and get these policies and laws approved from the Legislature. Thereafter these policies
and laws of the State are implemented by the civil servants, who work under the control of
Political Executive. The political executive heads the government. Each minister is head of a
department or some of the government.

(ii) The Non-political Permanent Executive (Civil Servants):

It consists of the civil servants (Bureaucracy) from the lowest to the highest levels. It carries out
the day to day administration by working in the government departments. The civil servants are
politically neutral. They do not owe allegiance to any political party.

Their job is to carry out the laws and policies of the government without any political
consideration. They are specially educated and trained persons. They are experts and
professionals. They give expert advice and opinion as well as collect, classify and present data
to the political executive on the basis of which the latter takes all decisions.

Once appointed, the civil servants remain in office till the attainment of the retirement age,
usually up to the age of 55 or 60 years. They get regular and fixed salaries and are hierarchically
organised into higher and lower relationships.

Functions of the Executive:

1. Enforcement of Laws:

The primary function of executive is to enforce laws and to maintain law and order in the state.
Whenever a breach of law takes place, it is the responsibility of the executive to plug the breach
and bring the offenders to book. Each government department is responsible for the
implementation of the laws and policies concerning its work. For maintaining law and order in
the state, the executive organises and maintains the police force.

2. Appointment-making Functions:

All major appointments are made by the chief executive. As for example, the President of India
appoints the Chief Justice and other Judges of the Supreme Court and High Courts.
Ambassadors, Advocate General of India, Members of Union Public Service Commission,
Governors of States etc.

Likewise, the President of the United States makes a very large number of key appointments.
All the secretaries who head various government departments, Judges of the Supreme Court and
other Federal Courts, the Federal officials in the States etc., are appointed by the US President.
However, all such appointments require the approval of the US Senate (Upper House US
Congress i.e. Parliament).

The members of the civil service are also appointed by the Chief executive. This is, usually,
done on the recommendation of a service recruitment commission. In India, the Union Public
Service Commission annually holds competitive examinations for All India Services, Central
Services and Allied Services.

It recruits on merit, candidates for appointment to these cadres. The appointments are done by
the Chief executive in accordance with the recommendations of the UPSC. Similar practice
prevails in almost all the states. As such appointment-making is a function of the executive.

3. Treaty-making Functions:

It is the responsibility of the executive to decide as to which treaties are to be signed with which
other countries. The executive negotiates the treaties in accordance with the procedure defined
by international law and also in accordance with the provisions the constitution of the state.

Each treaty is signed by a member of the executive. Most of the treaties also require ratification
by the legislature of the State. It is again the responsibility of the executive to secure legislative
approval for the treaties signed by it.

4. Defence, War and Peace Functions:

One of the key functions of the state is to defend and preserve the unity and integrity of the
country and protect it in the event of an external aggression or war. It is the responsibility of the
executive to undertake this work. To organise military for the defence of the state, to prepare for
and fight the war, if it becomes necessary, and to negotiate and sign peace settlement after every
war, are the functions performed by the executive.

The executive is the final judge of the nature of the threat to the security of the country. It has
the prime responsibility to take all such steps as are needed in the interest of the security and
integrity of the state. The chief executive of the state is also the supreme commander of the
armed forces of the state.

5. Foreign Policy-making and the Conduct of Foreign Relations:

In this age of ever-increasing global interdependence, it has become one of the most important
functions of a government to formulate the foreign policy of the state and to conduct foreign
relations. This function is also performed by the executive.

The executive formulates the goals of national interest and fixes the priorities. It first formulates
the foreign policy of the nation and then implements it for securing the defined goals of national
interest. The executive appoints the ambassadors of the state to other states.
6. Policy-making:

Modern welfare state has to carry out a large number of functions for securing the socio-
economic-cultural development of its people. It has to formulate policies, prepare short-term
and long-term plans and implement these. All actions of the state are guided by definite policies
and plans.

It is the executive which undertakes the task of policy-making and developmental planning.
These are the two most important functions of the executive, because by these the state carries
out its objective of promoting the welfare of its people.

7. Functions relating to Law-making:

Law-making is primarily the function of the legislature. However, the executive also plays a
role in law-making. In this sphere too the role of the executive has been increasing by leaps and
bounds. In a parliamentary system, the ministers are also members of the legislature and they
play a leading role in law-making.

Most of the bills for legislation are introduced and piloted by them in the legislature. Most of
the time of the legislature is spent in passing the governmental bills. The bills passed by the
legislature become laws only after these are signed by the Head of the State.

8. Law-making under the system of Delegated Legislation:

The system of delegated legislation has considerably increased the law-making role of the
executive. Under this system, the legislature delegates some of its law-making powers to the
executive. The executive then makes rules on the basis of these powers. The amount of
delegated legislation made by the executive far out-weighs the laws passed by the legislature.

9. Financial Functions:

It is the legislature which is the custodian of all finances. It has the power to impose, or reduce
or eliminate a tax. However, in actual practice, the executive exercises a number of financial
functions. It has the responsibility to prepare the budget. It proposes the levy of new taxes or
changes in tax structure and administration. It collects and spends the money as sanctioned by
the legislature.

The executive decides the ways and means through which the money is to be collected and
spent. It formulates all economic policies and plans. It takes suitable measures for regulating the
production and distribution of goods, money supply, prices and exports and imports. It contracts
foreign loans, negotiates foreign aid and maintains the financial credibility of the state.

10. Some Semi-Judicial Functions:

The appointment of judges by the executive is regarded as the best method for ensuring the
independence of judiciary. In almost all democratic systems, the chief executive has the power
to appoint judges. Further, he has the right to grant pardon, reprieve and amnesty to criminals.
Under the system of administrative adjudication, the executive agencies have the power to hear
and decide cases involving particular fields of administrative activity.

11. Grant of Titles and Honours:

Another important function of the executive is to grant titles and honours to the people in
recognition of their meritorious services to the nation. Such persons who do commendable work
in their respective spheres of activity—Art, Science, Literature etc. are granted titles by the
executive.

It also grants titles to such defence personnel who show exemplary courage and devotion to
duty during war or peace. Even ordinary citizens are granted honours in recognition of their
meritorious work for the society. All decisions in this respect are taken by the executive. These
are the major functions performed by the Executive. Executive has indeed emerged as the most
powerful organ of the government.

Types of Executive:

1. Nominal/Titular and Real Executives:

The difference between the nominal/titular and real executives is made only in a parliamentary
system of government. In it, the head of state, the President or the Monarch, is the nominal
executive and the Council of Ministers headed by the Prime Minister is the real executive. All
the powers are legally the powers of the nominal executive but in practice these are exercised by
the real executive.

The nominal executive is not responsible for its actions as these are performed in its name by
the real executive. The real executive is responsible for all the actions of the nominal executive.
The nominal executive is the ceremonial and dignified part of the executive, whereas the real
executive is its powerful part.

2. Hereditary and Elected Executives:

When the executive assumes office by the law of hereditary succession, it is called the
hereditary executive. When the executive is directly or indirectly elected by the people for a
fixed period or even for life, it is called the elected executive. In Britain, Japan and Malaysia
there are hereditary chief executives. In India, USA, Germany and many other states there are
elected chief executives.

3. Single and Plural Executives:

When all the executive powers are in the hands of a single functionary/leader, it is called a
single executive. In India, Britain, USA, Australia, France and many other states there are single
executives. In India, all the executive powers are with the President of India. Likewise under the
US Constitution, the executive powers are with the President of the United States of America.

When the executive powers are vested with a group of persons or in a

committee/council/commission and these are collectively exercised by all the members of this
commission/council, the executive is called the Plural Executive. As for example, in
Switzerland all the executive powers have been given to the Federal Council which consists of
seven members. All the members collectively exercise all the executive powers.

4. Parliamentary and Presidential Executives:

The distinction between the parliamentary and presidential executives is made on the basis of
relationship between the legislature and executive.

In Parliamentary Executive there is:

(i) A close relationship between legislature and executive and members of the executive are also
members of the legislature,

(ii) The members of political executive is individually and collectively responsible before the
legislature,

(iii) The tenure of the political executive is not fixed as it can be at any time removed by the
legislature, and

(iv) The legislative can be dissolved by the executive.

In a Presidential Executive, there is:

(i) Separation of powers between the executive and the legislature;

(ii) The membership of the two organs is incompatible i.e. member of one cannot be a member
of the other;

(iii) The executive is not responsible to the legislature; and

(iv) Neither can dissolve nor remove the other.

The parliamentary executives are functioning in India, U.K., Canada, New Zealand, Australia
and several other states. In the United States of America, the executive is presidential. In France
there is a mixture of these two forms of Executive.

JUDICIARY

Introduction to Indian Judiciary

The judiciary is that branch of the government that interprets the law, settles disputes and
administers justice to all citizens. The judiciary is considered the watchdog of democracy, and
also the guardian of the Constitution. For democracy to function effectively, it is imperative to
have an impartial and independent judiciary.

Independent Indian Judiciary

 It means that the other branches of the government, namely, the executive and the
legislature, does not interfere with the judiciary’s functioning.

 The judiciary’s decision is respected and not interfered with by the other organs.

 It also means that judges can perform their duties without fear or favour.

Independence of the judiciary also does not mean that the judiciary functions arbitrarily and
without any accountability. It is accountable to the Constitution of the country.

How Indian Judiciary is granted its independence?

The Constitution provides for a number of provisions that ensure that the independence of the
judiciary is maintained and protected. For more on this, you can check the below links.
Indian Judiciary – Structure

India has a single integrated judicial system. The judiciary in India has a pyramidal structure
with the Supreme Court (SC) at the top. High Courts are below the SC, and below them are the
district and subordinate courts. The lower courts function under the direct superintendence of
the higher courts.

The diagram below gives the structure and organisation of the judicial system in the country.

Apart from the above structure, there are also two branches of the legal system, which are:
 1. Criminal Law: These deal with the committing of a crime by any citizen/entity. A
criminal case starts when the local police file a crime report. The court finally decides on
the matter.

2. Civil Law: These deal with disputes over the violation of the Fundamental Rights of a
citizen.

Supreme Court has three types of jurisdictions. They are original, appellate and advisory.
The jurisdiction of the Supreme Court is mentioned in Articles 131, 133, 136 and 143 of the
Constitution.

Functions of Indian Judiciary – What is the role of the Judiciary?

The functions of the judiciary in India are:

1. Administration of justice: The chief function of the judiciary is to apply the law to

specific cases or in settling disputes. When a dispute is brought before the courts it
‘determines the facts’ involved through evidence presented by the contestants. The law
then proceeds to decide what law is applicable to the case and applies it. If someone is
found guilty of violating the law in the course of the trial, the court will impose a penalty
on the guilty person.

2. Creation of judge-case law: In many cases, the judges are not able to, or find it difficult
to select the appropriate law for application. In such cases, the judges decide what the
appropriate law is on the basis of their wisdom and common sense. In doing so, judges
have built up a great body of ‘judge-made law’ or ‘case law.’ As per the doctrine of
‘stare decisis’, the previous decisions of judges are generally regarded as binding on
later judges in similar cases.

3. Guardian of the Constitution: The highest court in India, the SC, acts as the guardian
of the Constitution. The conflicts of jurisdiction between the central government and the
state governments or between the legislature and the executive are decided by the court.
Any law or executive order which violates any provision of the constitution is declared
unconstitutional or null and void by the judiciary. This is called ‘judicial review.’
Judicial review has the merit of guaranteeing the fundamental rights of individuals and
ensuring a balance between the union and the units in a federal state.
 4. Protector of Fundamental Rights: The judiciary ensures that people’s rights are not
trampled upon by the State or any other agency. The superior courts enforce
Fundamental Rights by issuing writs.

5. Supervisory functions: The higher courts also perform the function of supervising the
subordinate courts in India.

6. Advisory functions: The SC in India performs an advisory function as well. It can give

its advisory opinions on constitutional questions. This is done in the absence of disputes
and when the executive so desires.

7. Administrative functions: Some functions of the courts are non-judicial or

administrative in nature. The courts may grant certain licenses, administer the estates
(property) of deceased persons and appoint receivers. They register marriages, appoint
guardians of minor children and lunatics.

8. Special role in a federation: In a federal system like India’s, the judiciary also
performs the important task of settling disputes between the centre and states. It also acts
as an arbiter of disputes between states.

9. Conducting judicial enquiries: Judges normally are called to head commissions that

enquire into cases of errors or omissions on the part of public servants.

Indian Judiciary – Civil Courts

Civil courts deal with civil cases. Civil law is referred to in almost all cases other than criminal
cases. Criminal law applies when a crime such as a robbery, murder, arson, etc. is perpetrated.

 Civil law is applied in disputes when one person sues another person or entity. Examples
of civil cases include divorce, eviction, consumer problems, debt or bankruptcy, etc.

 Judges in civil courts and criminal courts have different powers. While a judge in a
criminal court can punish the convicted person by sending him/her to jail, a judge in a
civil court can make the guilty pay fines, etc.

 District Judges sitting in District Courts and Magistrates of Second Class and Civil
Judge (Junior Division) are at the bottom of the judicial hierarchy in India.
  The court of the district judges is the highest civil court in a district.

 It has both administrative and judicial powers.

 The court of the District Judge is in the district HQ.

 It can try criminal and civil cases and hence, the judge is called District and Sessions
Judge.

 Under the district courts, there are courts of the Sub-Judge, Additional Sub-Judge and
Munsif Courts.

 Most civil cases are filed in the Munsif’s court.

Civil courts have four types of jurisdiction:

  Subject Matter Jurisdiction: It can try cases of a particular type and relate to a
particular subject.

 Territorial Jurisdiction: It can try cases within its geographical limit, and not beyond
the territory.

 Pecuniary Jurisdiction: Cases related to money matters, suits of monetary value.

 Appellate Jurisdiction: This is the authority of a court to hear appeals or review a case

that has already been decided by a lower court. The Supreme Court and the High Courts
have appellate jurisdiction to hear cases that were decided by a lower court.

Powers and Functions of the High Court

The High Court is the highest court in a state in India. Articles 214 to 231 in the Indian
Constitution talk about the High Courts, their organisation and powers. The Parliament can also
provide for the establishment of one High Court for two or more states. 

For instance, Haryana, Punjab and the Union Territory of Chandigarh have a common High
Court. The northeastern states also have one common High Court. In addition, Tamil Nadu
shares a High Court with Puducherry.

Currently, there are 25 High Courts in India. For a list of High Courts in India,

The High Courts of Calcutta, Madras and Bombay were established by the Indian High Courts
Act 1861.

What are the functions of the High Court?

The functions of the High Court are described in the below section under subsections such as its
jurisdiction, powers, role, etc.

High Court Jurisdiction

The various kinds of the jurisdiction of the High Court are briefly given below:

Original Jurisdiction

 The High Courts of Calcutta, Bombay and Madras have original jurisdiction in criminal
and civil cases arising within these cities.

 An exclusive right enjoyed by these High Courts is that they are entitled to hear civil
cases which involve property worth over Rs.20000.
  Regarding Fundamental Rights: They are empowered to issue writs in order to
enforce fundamental rights.

 With respect to other cases: All High Courts have original jurisdiction in cases that are
related to will, divorce, contempt of court and admiralty.

 Election petitions can be heard by the High Courts.

Appellate Jurisdiction

 In civil cases: an appeal can be made to the High Court against a district court’s
decision.

 An appeal can also be made from the subordinate court directly if the dispute involves a
value higher than Rs. 5000/- or on a question of fact or law.

 In criminal cases: it extends to cases decided by Sessions and Additional Sessions

Judges.

 If the sessions judge has awarded imprisonment for 7 years or more.

 If the sessions judge has awarded capital punishment.

 The jurisdiction of the High Court extends to all cases under the State or federal laws.

 In constitutional cases: if the High Court certifies that a case involves a substantial
question of law.

High Court Powers

Apart from the above, the High Courts have several functions and powers which are described
below.

As a Court of Record

 High Courts are also Courts of Record (like the Supreme Court).

 The records of the judgements of the High Courts can be used by subordinate courts for
deciding cases.

 All High Courts have the power to punish all cases of contempt by any person or
institution.

Administrative Powers
 1. It superintends and controls all the subordinate courts.

2. It can ask for details of proceedings from subordinate courts.

3. It issues rules regarding the working of the subordinate courts.

4. It can transfer any case from one court to another and can also transfer the case to itself
and decide the same.

5. It can enquire into the records or other connected documents of any subordinate court.

6. It can appoint its administration staff and determine their salaries and allowances, and
conditions of service.

Power of Judicial Review

High Courts have the power of judicial review. They have the power to declare any law or
ordinance unconstitutional if it is found to be against the Indian Constitution.

Power of Certification

A High Court alone can certify the cases fit for appeal before the Supreme Court.

High Court Autonomy

The independence of the High Courts can be corroborated by the points given below:

1. Appointment of Judges: The appointment of judges of the High Courts lies within the
judiciary itself and is not connected to the legislature or the executive.

2. Tenure of the Judges: High Court judges enjoy the security of tenure till the age of
retirement, which is 62 years. A High Court cannot be removed except by an address of
the President.

3. Salaries and allowances: The High Court judges enjoy good salaries, perks and
allowances and these cannot be changed to their disadvantage except in case of a
financial emergency. The expenses of the High Court are charged on the Consolidated
Fund of the State, which is not subject to vote in the state legislature.

4. Powers: The Parliament and the state legislature cannot cut the powers and jurisdiction
of the High Court as guaranteed by the Constitution.
 5. Conduct of judges: Unless a motion of impeachment has been moved, the conduct of
the High Court judges cannot be discussed in the Parliament.

6. Retirement: After retirement, High Court judges cannot hold an office of emolument

under the Government of India or that of a state. There is an exception to this clause,
however, when, with the consent of the Chief Justice of India, retired judges can be
nominated to a temporary office, and in the situation of emergencies.

Supreme Court of India - Indian Polity Notes

The Supreme Court of India is the country’s highest judicial court. It is the final court of appeal
in the country.

Latest Updates related to the Indian Supreme Court:

1. 15th February 2021: Former Supreme Court Judge, Justice PB Sawant Passed Away on
this day.

2. Supreme Court is examining a petition relating to the Social Media Firm Facebook and
its Messaging Application WhatsApp over their terms of service and privacy policy that
were to be out on February 8th, 2021.

3. 13th February 2021: Statement from Supreme Court while dismissing a review petition
on the anti-citizenship law protests held in Delhi’s Shaheen Bagh in 2019 – “Right To
Protest Cannot Be Anytime, Everywhere.”

Supreme Court History

 The Federal Court of India was created as per the Government of India Act 1935.

 This court settled disputes between provinces and federal states and heard appeals
against judgements of the high courts.

 After independence, the Federal Court and the Judicial Committee of the Privy Council
were replaced by the Supreme Court of India, which came into being in January 1950.

 The Constitution of 1950 envisaged a Supreme Court with one Chief Justice and 7
puisne Judges.

 The number of SC judges was increased by the Parliament and currently, there are 34
judges including the Chief Justice of India (CJI). 
Supreme Court of India – Functions

 It takes up appeals against the verdicts of the High Courts, other courts and tribunals.

 It settles disputes between various government authorities, between state governments,

and between the centre and any state government.

 It also hears matters which the President refers to it, in its advisory role.

 The SC can also take up cases suo moto (on its own).

 The law that SC declares is binding on all the courts in India and on the Union as well as
the state governments.

Supreme Court Jurisdiction

The jurisdiction of the SC is of three types:

1. Original – Read in detail about Original Jurisdiction of the Supreme Court in the linked
article. 

2. Advisory – Notes on Advisory Jurisdiction of the Supreme Court are given in the linked
article. 

3. Appellate 

Supreme Court Composition

 Including the CJI, there are 34 judges in the Supreme Court.

 The judges sit in benches of 2 or 3 (called a Division Bench) or in benches of 5 or more

(called a Constitutional Bench) when there are matters of fundamental questions of the
law is to be decided.

The Procedure of the Supreme Court of India

The Supreme Court of India has powers to consult the President to regulate the practice and
procedure of the Court.

The Constitutional Cases are usually decided by a bench consisting of five judges whereas other
cases are decided by a bench of at least three judges.

The seat of Supreme Court

As per the Constitution of India, Delhi is declared as the seat of the Supreme Court of India.
However, the Chief Justice of India has the power to assign another place (s) as the seat of the
Supreme Court. This is only an optional provision and not mandatory.

SC Judge Eligibility

As per Article 124, an Indian citizen who is below 65 years of age is eligible to be
recommended for appointment as a judge of the SC if:

1. he/she has been a judge of one or more High Courts, for at least 5 years, or

2. he/she has been an advocate in one or more High Courts for at least 10 years, or

3. he/she is in the opinion of the President, a distinguished jurist.

Independence of Judiciary

The Constitution has many provisions to ensure the judiciary’s independence. They are
discussed below:

1. Security of tenure: The judges of the SC are given security of tenure. Once appointed,
they will retain their office until the age of 65 years. They can be removed only by a
presidential order on grounds of proven misbehaviour and/or incapacity. This requires a
Special Majority according to Article 368.

2. Salaries and allowances: The judges of the SC enjoy good salaries and allowances and
these cannot be decreased except in the case of a financial emergency. The expenses of
the High Court are charged on the Consolidated Fund of the State, which is not subject
to vote in the state legislature.

3. Powers and Jurisdiction: The SC’s powers and jurisdiction can only be added by the
Parliament and not be curtailed. 

4. The conduct of any judge of the Supreme Court in the discharge of his/her duties cannot
be discussed in the legislature.

5. The SC has the power to punish any person for its contempt, as per Article 129. (Read
about Contempt of Court in India in the linked article.)

6. Separation of the Judiciary from the Executive: A Directive Principle of State

Policy says that the state shall take steps to separate the judiciary from the executive in
 the public services of the state. According to Article 50, there shall be a separate judicial
service free from executive control.

HOW A BILL IS PASSED IN INDIA - TYPES & STAGES OF A BILL –

The Indian Parliament legislates with the use of governmental acts. These acts are introduced
into the Indian Constitution only after the draft bills are passed by the parliament. There are
various types of bills that are introduced in either house of the Parliament to enact a law.

Types of Bills in India- Definitions, Differences

There are four types of bills that are introduced in the Indian Parliament for different purposes.

The table below mentions the different types of bills and their significance:

Types of Bills in India

S.No Name of the Bill Significance

1 Ordinary Bill (Article 107, Article Concerned with any matter other than financial
108) subjects

2 Money Bill (Article 110) Concerned with financial matters like taxation, public
expenditure, etc

3 Financial Bill (Article 117 [1], Article Concerned with financial matters (but are different
117[3]) from money bills)

4 Constitutional Amendment Bill Concerned with the amendment of the provisions of the
(Article 368) Constitution.

 Difference between Ordinary Bill and Money Bill in India

Difference Ordinary Bill Money Bill

Introduction In either Lok Sabha or Rajya Sabha Only in Lok Sabha

 Introduced By Minister or a Private Member Only a Minister

President’s Not Need Only after he recommends

Recommendation

Rajya Sabha’s Role  Can be amended/rejected by  Cannot be amended/rejected by

Rajya Sabha Rajya Sabha. (It has to return the
bill with/without
 
recommendations)

 Can be detained by the  Can be detained by the Rajya

Rajya Sabha for a maximum Sabha for a maximum period of 14
period of six months. days only.

President’s Assent Sent for his assent only after being Send for his assent only after Lok Sabha’s
approved by both the houses approval. (Rajya Sabha approval is not
required)

Can be rejected, approved, or Can be rejected or approved but cannot be

returned for reconsideration by the returned for reconsideration by the
President. President.

Joint Sitting of Both In case of deadlock, there is a No chance of disagreement, hence, no

Houses provision of a joint sitting provision of a joint sitting

What Are The Important Steps in Making of a Law in India?

There are separate procedures for the enactment of the four types of bills. These procedures to
enact the bills are laid down by the Indian Constitution. They are given below:

 Stages of passing an Ordinary Bill

There are five stages through which an ordinary bill has to go through before it finally becomes
an act:

Stages Details

First Reading A minister or a member introduces the bill in either house of the Parliament. He asks
for leave before introducing the bill. He reads the title and objective of the bill.

After the introduction, the bill is published in the Gazette of India

Note:

1. No discussion on the bill takes place in this stage

2. If the bill is published in the Indian Gazette before its introduction, the
minister/member does not have to ask for leave

Second Reading Stage of General Discussion- Four actions can be taken by the house on the bill:

1. It may take the bill into consideration immediately or on some other fixed date

2. It may refer the bill to a select committee of the House

3. It may refer the bill to a joint committee of the two Houses

4. It may circulate the bill to elicit public opinion

Note:

1. Select Committee- Has members of the house where the bill is introduced

2. Joint Committee- Has members from both the houses

Committee Stage:

1. Select Committee examines the bill thoroughly and in detail, clause by clause.

2. It can also amend its provisions, but without altering the principles underlying
it.

3. After completing the scrutiny and discussion, the committee reports the bill
 back to the House.

Consideration Stage:

1. The House, after receiving the bill from the select committee, considers the
provisions of the Bill clause by clause.

2. Each clause is discussed and voted upon separately.

3. The members can also move amendments and if accepted, they become part
of the bill.

Third Reading One of the two actions take place:

1. Acceptance of the Bill (If the majority of members present and voting accept
the bill, the bill is regarded as passed by the House)

2. Rejection of the Bill

Note:

1. No amendments to the bill are allowed

2. A bill is deemed to have been passed by the Parliament only when both the
Houses have agreed to it, either with or without amendments.

Bill in the The first three stages are repeated here i.e.:
Second House
1. First Reading

2. Second Reading

3. Third Reading

The second house can take one of the four actions:

1. It may pass the bill as sent by the first house (ie, without amendments)

2. It may pass the bill with amendments and return it to the first House for
reconsideration
 3. It may reject the bill altogether

4. It may not take any action and thus keep the bill pending

Note:

1. The bill is deemed to have been passed if both the houses accept the bill and
the amendments

2. If the second house takes no action for 6 months, a deadlock appears which is
acted upon through a joint sitting (summoned by President) of both the
houses

Assent of the One of the three actions can be taken by him:

President
1. May give his assent to the bill (The bill becomes an act and is placed on
statute book)

2. May withhold his assent to the bill (The bill ends and does not become an act)

3. May return the bill for reconsideration (The houses can/cannot make
amendments and send it back to the President after which he has to give
assent)

Note:

President only enjoys ‘Suspensive Veto.’ 

 Stages of passing a Money Bill

Money Bill in India

Unlike Ordinary Bill, Money bill is introduced only in Lok Sabha on the recommendation of President
which is a must.

The bill, moved on the recommendation of the President and introduced in the Lok Sabha is termed as a
government bill.

Note: All government bills are introduced only by the minister.

After Lok Sabha passes the bill, it is moved to Rajya Sabha which has only restricted powers. It cannot
reject or amend the bill.

Note:

1. Rajya Sabha has to return the bill within 14 days with or without recommendations of the
amendments

2. If it does not return the bill within the prescribed days, the bill is deemed to have been passed

3. Lok Sabha may or may not accept the amendments.

After passing through both the houses, the President’s assent is required. He can take two actions:

1. Give assent

2. Withhold assent

Note: President can’t return the bill for reconsideration

After President’s assent, the bill becomes the act and is published in the Indian Statute Book. 

 Stages of passing a Constitutional Amendment Bill

Constitutional Amendment Bill

Introduction In either house of the parliament

Note:

Can’t be introduced in the state legislatures

Introduced by Either by a minister or by a private member

Note:

It does not require prior permission of the president.

Majority Needed Must be passed in each House by a special majority, that is, a majority (that is, more
than 50 per cent) of the total membership of the House and a majority of two-thirds
 of the members of the House present and voting

Joint Sitting There is no provision for joint sitting in case of deadlock

Role of State If the bill seeks to amend the federal provisions of the Constitution, it must also be
Legislature ratified by the legislatures of half of the states by a simple majority, that is, a
majority of the members of the House present and voting

President’s He must give his assent

Assent
Note:

1. He can’t return the bill

2. He can’t withhold the bill unlike in the case of ordinary bills

After President’s assent, the bill becomes a Constitutional Amendment Act and the Constitution
stands amended in accordance with the terms of the Act. 

COURTS

The Indian judicial system follows the common law system based on recorded judicial
precedents as inherited from the British colonial legacy. The court system of India comprises
the Supreme Court of India, the High Courts and subordinate courts at district, municipal and
village levels.

I. Hierarchy of courts

The Indian judiciary is divided into several levels in order to decentralize and address matters at
the grassroots levels. The basic structure is as follows:

1. Supreme Court: It is the Apex court of the country and was constituted on 28th January
1950. It is the highest court of appeal and enjoys both original suits and appeals of High Court
judgments. The Supreme Court is comprised of the Chief Justice of India and 25 other judges.
Articles 124-147 of the Constitution of India lay down the authority of the Supreme Court.
2. High Courts: High Courts are the highest judicial body at the State level. Article 214 lays
down the authority of High Courts. There are 25 High Courts in India. High Courts exercise
civil or criminal jurisdiction only if the subordinate courts in the State are not competent to try
the matters. High Courts may even take appeals from lower courts. High Court judges are
appointed by the President of India upon consultation with the Chief Justice of India, the Chief
Justice of the High Court and the Governor of the State.

3. District Courts: District Courts are established by the State Governments of India for every
district or group of districts based on the caseload and population density. District Courts are
under the direct administration of High Courts and are bound by High Court judgments. Every
district generally has two kinds of courts:

a. Civil Courts

b. Criminal Courts

District Courts are presided over by District Judges. Additional District Judges and Assistant
District Judges may be appointed based on the caseload. Appeals against District Court
judgments lie in the High Court.

4. Lok Adalats/Village Courts: these are subordinate courts at the village level which provide
a system for alternate dispute resolution in villages.

5. Tribunals: the Constitution provides the government with the power to set up special
Tribunals for the administration of specific matters such as tax cases, land cases, consumer
cases etc.

Appellate jurisdiction refers to the authority of a court to rehear/review a case decided by a

lower court. In India, appellate jurisdiction is vested in both the Supreme Court and High
Courts. They may either overrule or uphold the judgments of lower courts.

II. Civil Courts

Civil courts provide remedies for civil wrongs committed by individuals against other
individuals and entities. Civil matters range from property disputes to breaches of contract to
divorce cases. Civil courts follow the principle of ubi jus ibi remedium (for every wrong the law
provides remedy). Unless expressly or impliedly barred by any other law in force, civil courts
have the jurisdiction to try all suits of civil nature.
The Code of Civil Procedure (CPC) 1908 governs the procedures to be followed by civil
courts in administering civil cases in India.

As a matter of fact, every suit must be instituted before the court of lowest jurisdiction (the
Munsif court). Upon institution, it is decided whether the respective court has competence to try
the case.

The Civil Court hierarchy in districts is as follows:

1. District Court: The court of district judges is the highest civil court in a district. It exercises
both judicial and administrative functions. The District Judge combines the powers of trying
both civil and criminal cases. Hence, they are designated the District and Sessions Judge.

2. Sub-judge Court: if the value of the subject-matter of the suit is worth more than Rs. 1 lakh,
the Sub-judge and Additional Sub-judge courts may try the suit.

3. Additional Sub-judge Court: this is created based on the case-load.

4. Munsif Court: if the value of the subject-matter of the suit is worth Rs. 1 lakh or below, the
Munsif court is competent to try the suit.

III. Criminal Courts

The power of the various criminal courts is mentioned under the Code of Criminal Procedure
(CrPC).

According to Section 26 of the CrPC, any offence mentioned under the Indian Penal Code may
be tried by:

1. High Courts

2. Courts of Session

3. Any other Court as specified in the First Schedule of the Code of Criminal Procedure

IV. Judicial Authority of the Supreme Court

Articles 141 and 144 of the Constitution uphold the authority and jurisdiction given to the
Supreme Court to make decisions and uphold the law of the land. These Articles give animal
welfare judgments their binding force, ensuring that they are appropriately enforced and
implemented by the respective authorities. They allow for the Supreme Court to issue directives
and fill gaps in law until the legislature steps in.
Article 141

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

This Article embodies the English principle of stare decisis which holds that law must be
definite, fixed, known and consistent. Since the Supreme Court is the Apex court of the country
and all courts and tribunals are bound by its decisions, Supreme Court judgments become a
source of law in themselves.

The binding part is the operative part of the judgment or the ratio decidendi (“reason of
decision) determined after reading the judgment in its entirety. It is the general principle derived
from a judgment that is deduced by courts when deciding the case based on facts. Mere
observations, or the obiter dicta (“said by the way”), on the other hand, refer to those parts of
judicial decisions which are general observations of the judge in the case. Obiter dicta have only
persuasive value, not binding authority.

Article 144

Article 144 lays down that “all authorities, civil and judicial, in the territory of India shall act
in aid of the Supreme Court.”

The Supreme Court has the power to hold any authority in contempt if they disregard or disobey
the order of the court.

V. Binding value of Judicial Precedents

Since India is a common law country, previously decided judgments of higher courts such as the
Supreme Court and High Courts are binding on subordinate and lower courts, i.e., subordinate
courts are bound to follow the decisions and hold them to be the law. Precedents are an
important source of law in India. The binding value of different courts in the court hierarchy is
as follows:

1. Decisions of the Supreme Court are binding on all courts in India. The Supreme Court
is not bound by decisions of High Courts, lower courts or other judicial authorities.

2. Decisions of a High Court are binding on all inferior courts (as long as they don’t
conflict with Supreme Court decisions) within its jurisdiction but holds only persuasive
value for courts outside its jurisdiction. In case the decisions of the High Court conflict
with the decisions of a similar bench, the matter is referred to a higher bench.
3. Lower courts are bound by decisions of higher courts in their own states. Decisions by
High Courts of other states hold only persuasive value.