JUDICIARY

“ A WATCHING TOWER ABOVE ALL THE BIG

STRUCTURES OF THE OTHER LIMBS OF
GOVERNMENT”
 Introduction

Judiciary Plays important role of interpreting and

applying the law
Adjudicating upon controversies between;
 one citizen and other
 Citizen and state
 Centre and the state
Maintains rule of law in the country
Safeguards the supremacy of the constitution
Protects and enforces the fundamental rights of
people guaranteed under the constitution
 UNIFIED JUDICIAL SYSYTEM

Apex Court – Supreme Court

Below supreme court – High courts
Under each High Court there exist a system of
Subordinate Courts
 SUPREME COURT

Supreme Court enjoys the topmost position in

judicial hierarchy
It is the supreme interpreter of the constitution
Guardian of people’s fundamental rights
It is the ultimate court of appeal in all Civil &
Criminal matters
Final interpreter of the law of the land.
 Art 124

Art 124. (1) There shall be a Supreme Court of India

consisting of a Chief Justice of India, until
Parliament by law prescribes a larger number, of not
more than seven other Judges.
Every Judge of the Supreme Court shall be
appointed by the President by warrant under his
hand and seal
on the recommendation of the National Judicial
Appointments Commission referred to in article
124A( 2014)
(This amendment( Art 124A) has been struck down
by the Supreme Court’s order dated 16th October,
2015 in the Supreme Court Advocates’ on Record
Association Vs. Union of India.)
 Original Art 124(2)

Every Judge of the Supreme Court shall be

appointed by the President by warrant under his
hand and seal
after consultation with such of the Judges of the
Supreme Court and of the High Courts in the States
as the President may deem necessary for the
purpose 
 Appointment of Judges

Different stages;
Primacy of the executive
Setting up of the collegium
Setting up of the National Judicial Appointment
Commission,
The question with regards to the independence of
judiciary has come a long way, and surprisingly as
well as regrettably is still unsolved.
 Intent of the Makers of the Constitution

Dr. Ambedkar summed down the three issues which

prevailed with regards to appointment of judges
Firstly, the Judges of the Supreme Court should be
appointed with the concurrence of the Chief Justice.
Secondly, the appointments made by the President
should be subject to the confirmation of two-thirds
vote by Parliament;
Thirdly, that they should be appointed in
consultation with the Council of States.
 1947 to 1973

The appointments of judges were made with the

consultative process and the opinion of CJI was
hardly avoided.
The senior most judge of the Supreme Court was
made the CJI and the executive (president) respected
the
Constitutional convention of appointing the senior
most judge a CJI was followed till 1973.
 1973

Justice A.N. Ray was made CJI superseding three

senior most judges(Justices Jaishanker Manilal
Shelat, A N Grover and K S Hegde).
The same was repeated in 1977 when Justice H.R.
Khanna(the senior most judge) was not the CJI
because of his dissenting remark against the
government in ADM Jabalpur case.( Justice MH
Bheg appointed)
 Judges Transfer Cases

First Judges Transfer Case-

S.P. Gupta Vs. Union of India (AIR 1982 SC
149)
Hon’ble Supreme Court held that the Chief Justice
shall have to consult two other senior most Judges of
the Supreme Court before sending his opinion.
The judgment in this case tilted the balance of power
in appointments of judges of High Courts in favour
of the executive.
In this Judgment, the Supreme Court laid down certain
guidelines;
1. Court gave privacy to the Chief Justice of India but puts
a check on him to consult at least two of his senior most
colleagues.
2. Constitutional functionaries must act collectively in
Judicial Appointments.
3.  Appointment of Chief Justice of India by seniority only.
4. No Judge can be appointment by the Union
Government without Consulting the Chief Justice of
India
 Second Judges Transfer Case

 Supreme Court Advocates-on-Record Association

Vs. Union of India [1993 (4) SCC 441]( Collegium
system)
Court observed;
 Chief justice should have the greatest weight,
selection should be made as a result of a
participatory consultative process
 In participatory consultative process executive
should have power to act as a mere check on the
exercise of power by Chief Justice
Executive element in the appointment process is
reduced to the minimum & political influence is
reduced to minimum
Primacy of opinion of Chief justice is formed
collectively
Proposition laid down by the Supreme court with
regard to the appointment;
 Initiation of the proposition for appointment of a
supreme court judge must be by chief Justice
 No appointment of any judge by the president
without the consultative process
 All consultation must be in writing
 Appointment of chief justice ought to be of the senior
most judge of the supreme court
 Third Judges Transfer Case

In re:Special Reference, AIR 1999 SC 1

Proposition laid down by the court in this case;
 In making recommendation for appointment of judges to
supreme court, chief justice has to consult 4 senior most
judges( collegium)
 Views of senior most supreme court judges who hails
from the High Court from where person recommended
must be obtained
 If even two members of collegium with strong reasons are
adverse to the appointment of a particular person, Chief
justice will not press for such appointment
 National Judicial Appointments Commission
(NJAC

The Commission was established by amending

the Constitution of India through the ninety-ninth
constitution amendment .(Ninety-Ninth
Amendment) Act, 2014.
The Constitution Bench of Supreme Court by 4:1
Majority upheld the collegium system and struck
down the NJAC as unconstitutional in Supreme
Court Advocates’ on Record Association Vs.
Union of India  ( 2015)
Commission would have consisted of the following
six persons:

Chief Justice of India (Chairperson,  ex-officio)

Two other of senior judges of the Supreme Court
next to the Chief Justice of India
The Union Law Minister, ex-officio
Two eminent persons;
Prime Minister of India,
Leader of Opposition in the Lok Sabha
 QUALIFICATION( Art 124(3))

Should be a citizen of India

Either a Judge of a High Court for 5 years
An advocate of a High Court for ten years
Distinguished Jurist
Retired supreme court judge cannot plead or act in
any court or before any authority in India( Art
124(7))
CJ with previous consent of President many request
any retired SC judge or High court Judge to sit and
Act as Judge of Supreme court( Art 128)
 Tenure & Removal

Resign by writing to the President

Holds office until he attain the age of 65 years.
Removal;
 He may be removed from office by the president on
an
 Address by both houses of parliament( 2/3 rd
members support) presented in the same session for
 Proved misbehavior or
 Incapacity
 Impeachment Procedure

The Judge ( Inquiry) Act,1968 – procedure

 A notice of motion given by 100 members of Lok
Sabha or 50 members of Rajya Sabha
 If admitted- committee- Supreme court Judge +
Chief justice of High court + Jurist
 Committee – charges – investigate – report to the
house
 If committee finds the judge guilty house can take up
for consideration
 Example -Justice Sen
 JURISDICTION & POWER

The Jurisdiction of the court may be put under the following heads;
i. Power to commit a person for its contempt( Art 129)
ii. Original jurisdiction- to decide inter- governmental disputes( Art
131)
iii. Appellate Jurisdiction – It is the highest court of appeal for all
civil or criminal matters (Arts 132 to 134).
iv. Special leave petition( Art 136)
v. Writ Jurisdiction ( Art 32)
vi. Advisory Jurisdiction ( Art 143)
vii. Power to review its own decision ( Art 137)
viii. Court has power to make any order necessary for doing complete
justice in any case ( Art 142)
 Court of Record

Court of record has –

1. Power to determine its own jurisdiction and
2. It has power to punish for its contempt ( Art 129)
 Contempt of Court ( At 129)

This is an extra ordinary power and is exercised only

when the public interest so demands.
Such power is necessary
 to prevent interference with the course of justice,
 to maintain the authority of law and
 thus to protect public interest in the purity of the
administration of justice
 Hira Lal Dixit v. State of Uttar Pradesh, AIR 1954 SC
743

Making statement which are derogatory to the dignity

of court which are calculated to undermine the
confidence of people in the integrity of the Judges
Stir up public feeling on questions pending before
court and try to influence the judge
Act or publication which scandalizes the court
attributing dishonesty to judge in discharge of his
function
Willful disobedience or non compliance of court order.
In the matter of the editor, printer and publisher,
times of India Bombay, Delhi, AIR 1953 SC75
 The court has stated that if an impression were
created in the public mind & public confidence in the
administration of justice would be undermined then
can result in contempt
 Fair, reasonable and legitimate criticism of the
judiciary or of the conduct of judge is permissible
 Delhi Development Authority v. Skipper Construction,
(1995) 3 SCC 619

Contempt of court characterized as;

1. Civil – willful disobedience of a court order to do or
abstain from doing an act
2. Criminal – outrages on judges in open court,
defiant disobedience to judges in open court, Libels
on judges or interfering with course of justice or
any act which tends to prejudice the course
of justice
Example – lawyer threatening judge , witness taking in
consistent stand before court
Sec 14 of Contempt of Courts Act – Court may take
action in three ways;
1. On its own motion ( Suo motu)
2. On the motion of Attorney – General or the
Solicitor General
3. Any other person with the consent of the Attorney
– General or the Solicitor General
C.K Daphtary v. O.P Gupta, AIR 1971 SC 1132

A pamphlet published and circulated by the

respondent
SC held that court can deal with the matter
summarily and adopt its own procedure. However
the procedure must be fair. The code of criminal
procedure does not apply.
The matter is primarily between the court & the
condemner.
Delhi Development Authority v. Skipper
Construction, (1995) 3 SCC 619 – Under Art 129
Supreme court has power to punish for contempt not
only of itself but also High Courts & of the lower
courts.
Supreme court can take cognizance of the contempt
of the Tribunal because an appeal from the tribunal
lies ultimately to Supreme Court
Supreme court Bar Association v. Union of India,
AIR 1988 SC 1895
SC has no power to suspend the practice of a lawyer
guilty of contempt. Action against advocate may be
taken by the Bar council under Advocates Act,1961)
 ORIGINAL JURISDICTION

Enforcement of Fundamental Rights – Art 32

empowers the court to issue writs for enforcement of
fundamental rights. High court enforces
fundamental rights by issuing writs under Art 226
 EXTRAORDINARY ORIGINAL JURISDICTION

 Election of the president and vice- president

 Inter- Governmental disputes –Article 131
 Supreme court has exclusive original jurisdiction in
any dispute between-
 Government of India & one or more states
 Between the Government of India and any State or
states on one side and one or more states on the
other
 Between two or more states
Dispute arising under the provision must involve
question of law or fact on which the existence of legal
right depends
Court has no jurisdiction in matters of political
nature
Sate of Karnataka v. Union of India( 1978 US C.J
190)( Commission of inquiry, 1952 – inquiry against
chief minister and other ministers – state filed case
under Art 131)
Union of India v. State of Rajasthan, (1984), 4 SCC
238( Recovery of damages under sec 80 of Railways
Act)
Court held that Art 131 is attracted only when the
dispute between amongst the states and union in the
context of the constitutional relationship that exist
between them and powers, rights, duties,
immunities, liabilities, disabilities, etc.
 Exclusion of Article 131

Court’s jurisdiction does not extend to a “ dispute

arising out of treaty, agreement, covenant,
engagement or other similar instrument;
 Which having been entered into or executed before
the commencement of the constitution, continues in
operation after such commencement( Art 363)
Under Art 262(2), parliament may by law exclude
Supreme Court’s jurisdiction in respect of inter-state
or river valley dispute
 Governed by inter- state water dispute Act,1956
 Appellate jurisdiction- Art 132

 Constitutional Matters
 An appeal lies to supreme court from any judgment,
decree or final order,
 Whether in a civil, criminal or other proceeding’
 Of a High court if it certifies that the case involves a
 substantial question of law as to interpretation of
constitution
Syedana Takur v. State of Bombay, AIR 1958 S.C 253
Court held that even after the certificate is granted
by the High Court the Supreme Court may refuse to
hear the appeal if it is satisfied that the appeal is not
competent
 Certificate can be granted by High court under
following conditions;

An appeal lies only from “ any judgment decree or

final order” of High court. No appeal lies from an
interim order of a High court.
Art 132(1) uses expression “ civil, criminal or other
proceeding”. Any proceedings here means
proceedings which are neither civil or criminal
Example – contempt of court, disciplinary
proceeding against lawyers,
Cases involving substantial question of law
 Art 133 – Appeal in Civil Case

An appeal shall lie to the Supreme Court from any

judgment, decree or final order in a civil proceeding
of a High Court in the territory of India
if the High Court certifies under Article 134A that the
case involves a substantial question of law of general
importance; and
 that in the opinion of the High Court the said
question needs to be decided by the Supreme Court
Under Art 133 Supreme court does not interfere with
the concurrent findings of facts by the trial court and
High court unless
It is shown that evidence has been overlooked or
unless it is fully unsupported by evidence on record.
Appeal under Art 133, the appellant cannot be
allowed to raise new grounds not raised before lower
court
 Appellant Jurisdiction in Criminal Matter Art 134

Art 134(1)(a) & (b)- Without Certificate of High

Court
Art 134(1)(a)-  An appeal shall lie to the Supreme Court
from any judgment, final order or sentence in a criminal
proceeding of a High Court in the territory of India,
 If the High Court has on appeal reversed an order of
acquittal of an accused person and sentenced him to
death;
Tarachand v. State , AIR 1962 SC 130
No appeal would lie if the High court reverses an order of
conviction of an accused and acquits.
 Art 134 (1)(b) - Appeal shall lies to Supreme court
if the High court has withdrawn for trial before itself
any case from any court subordinate to its authority
and has in such trial convicted the accused person
and sentenced him to death.
Art 134A- With Certificate of High Court
Appeal lies with a certificate from the High court if the
High Court certifies under Art 134-A that the case is
fit one for appeal to the supreme court
State of U.P v. Raj Nath, AIR 1983 SC 187 (High
court acquitted in appeal solely on the ground that it
regarded the testimony of eye- witness baseless
 Art 136 – Special Leave Petition( SLP)

Art 136(1) - Notwithstanding anything in this

Chapter, the Supreme Court may, in its discretion,
grant special leave to appeal from any judgment,
decree, determination, sentence or order in any
cause or matter passed or made by any court or
tribunal in the territory of India
Notwithstanding – “ non obstante clause”
Art 136 does not confer a right of appeal on party as
such like Art 132 to 134, gives discretionary power on
Supreme court in accordance with established judicial
principles
Supreme court enjoys limitless power under Art 136.
It should be exercised sparingly and only in exceptional
cases.
By the virtue of this Article court can grant special leave
in civil, criminal , income tax cases, cases in tribunal etc
Court will not grant special leave unless there exist
exceptional and special circumstance, that
,substantial and grave injustice has been done.
( Pritam Singh v. The state, 1950 AIR 169)
Under Art 136 only those points can be urged at the
final hearing of appeal which were fit to be urged at
the preliminary stage when leave to appeal were
asked for.(Rukmani Bai Gupta v. State Government
Of Madhya, 1975 AIR 991)
 Features of Special Leave Petition

 Art 132 to 134 regulates appeals from High Court to

Supreme Court. But there can be cases outside the
purview of these articles which has to be heard in the
interest of justice. This is dealt under Art 136
 Art 136 unlike Art 132 to 134 permits appeal from
‘any courts’.
Rajendra Kumar Jain Etc v. State 1980 AIR 1510
( appeal from chief judicial magistrate directly to
Supreme court)
 The Word ‘ order’ in Art 136(1) has not been
qualified by adjective ‘final’ as in the case of Art 132
to 134. So under the Art 136 Supreme court can hear
appeal even from interim orders.
 Supreme court under Art 136 may hear appeal even
when legislature declares a decision of court/
tribunal as final.
Raigarh Jute Mills Ltd v. Eastern Railway And
Another 1958 AIR 525 (Indian Railways Act, 1890-
Railways rate tribunal – decision final- allowed SLP)
 Supreme Court under Art 136 have judicial
superintendence over all the courts
 Article 136 – Two stages involved
 Stage 1 – Granting special leave ( Directory power)
 Stage 2 – Hearing the appeal ( Appellate power)
 Who can file Special Leave - Who is a party & any
party who is adversely affected.
 Effect of dismissal of SLP

Supreme court can merely dismiss the appeal

without giving reason.
By dismissing the appeal it does not mean that the
supreme court has approved the view of the lower
court.
When supreme court summarily dismisses SLP
under Art 136 its decision will not be binding on
other courts & aggrieved party may pursue any other
statutory remedy.
If the special leave petition is dismissed with speaking
order then that decision will be binding on other courts.
Art 136 imposes no restriction or limitations on the
power of the supreme court to hear the appeals but it has
imposed its own self imposed restrictions
Nirma Ltd vs Lurgi Lentjes Energietechnik (2002) 5 SCC
520
Court held that before invoking the jurisdiction of court
under Art 136, aggrieved party must exhaust any remedy
available under the law before the lower appellate
authority.
 Appeals in constitutional/ Civil Cases

Under Art 136, Supreme court can hear appeal

involving substantial question of law if the High
court refuses to grant the necessary certificate under
Art 132.
Supreme Court may entertain appeal in Civil case
where substantial question of law is involved but
which is not covered by Art 133.
 Appeals in Criminal Cases

Haripada Dey v. State of West Bengal, AIR 1956 SC

757
Supreme court held that it will grant SLP only if
there has been gross miscarriage of justice or
departure from legal procedure which vitiate the
whole trial of finding of facts shocking to the judicial
conscience of the court.
Bhagibai Hirajibhai v. state of Gujarat, AIR 1983 SC 753
Supreme court does not interfere with concurrent
finding of facts unless it is established;
1. that the finding is based on no evidence
2. that finding is perverse, it being such as no reasonable
person could arrive at even if the evidence was taken
at its face value.
3. finding is based on inadmissible evidence
4. some vital piece of evidence which could tilt the
balance in favour of the convict has been overlooked
 Appeals from Tribunals Under Art 136

Side by side with the courts, a plethora of bodies and

officials carry on adjudicatory function under powers
conferred on them by the legislation.
Most of these adjudicatory bodies are characterized
as “ quasi judicial”, indicating thereby that these are
not courts.
 Tests to determine whether a body is tribunal or not

It should not be an administrative body pure and

simple but a quasi judicial body as well
It should be under an obligation to act judicially
It should have some trapping of court
It should be constituted by the state
Jaswant sugar mills v. Lakshmi Chand, AIR 1963 SC
677( conciliating officer – not tribunal – even though
can alter the terms of employment)
A.P.H.L Conference, Shillong v. W.A. Sangma, AIR 1878
SC 2155( election commission – a tribunal)
Clerks of Calcutta Tramways v. Calcutta Tramways Co.,
Ltd, AIR 1957 SC 78
Supreme court can normally interfere with the decision
arrived at by these tribunals on the following grounds;
1. Tribunal acts in excess of the jurisdiction conferred by
statute or regulation creating it
2. There is apparent error on the face of decision
3. Award made in violation of principles of natural justice
causing grave injustice to the parties
 Power to Review(Art 137)

Supreme Court shall have power to review any

judgment pronounced or order made by it
This special power is exercisable in accordance with
and subject to any parliamentary legislation and
rules made by Supreme court under Art 145
According to the rules of court, a review of a court
decision will lie on following grounds:
1. Discovery of new and important matter of evidence
2. Mistake or error apparent on face of record
3. Any other sufficient reason
 A review proceeding cannot be equated with original
hearing of the case and finality of the judgment will
not be considered except where a glaring omission or
patent mistake or error has crept in from part of
judiciary.
Lilly Thomas v. Union of India, AIR 2000 SC 1650
Court held that review cannot be treated like an
appeal in disguise. The mere possibility of two views
on subject is not ground for review.
A.R Antulay v. R.S Nayak, AIR 1988 SC 1531
Court have inherent power ex debito justitiae to
recall an order made by it earlier if it was made by
mistake. ex debito justitiae means the court must do
justice to a person, if the man was wronged.( an
order made by 5 judge bench recalled by 7 judge
bench)
(Court transferred a case pending against Antulay in
special court under prevention of corruption Act to
Bombay High court)
 Curative Petitions

Even after a review petition is rejected by court that may

not be the end of the road
Evolved a new concept of curative petition in
Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 SCC 388
Curative petition can be invoked under following grounds
1. Variation of the principles of natural justice
2. A judge who participated in the decision did not disclose
his links with a party to the case. i.e. question of bias
3. Abuse of process of court
 Withdrawal & Transfer of Cases

If on application made by the attorney general of

India or
By any party or
On its own motion by the supreme court if it is
satisfied that
Cases involving the same or substantially the same
questions of law are pending before the Supreme
Court and one or more High Courts or before two or
more High Courts
Question is of general importance
Supreme Court may withdraw them and dispose of
them itself
After disposing the said question of law return any
case to the High court
Then High court will dispose of the case
Art 139 A (2)- The Supreme Court may, if it deems it
expedient so to do for the ends of justice, transfer
any case, appeal or other proceedings pending before
any High Court to any other High Court
Union Of India & Anr v. Shiromani Gurdwara
Prabandhak, 1986 SCR (3) 472
Union Carbide Corporation V. Union Of India 1992
AIR 248
SC has ruled that Art 139A(1) is not exhaustive of the
supreme court’s power to withdraw a case to itself
from a lower court. Court can act under Art 136 &
142
Law declared by the Supreme Court( Art 141)

The doctrine of stare decisis or precedent

The law declared by the Supreme Court shall be
binding on all courts within the territory of India
A judgment is authoritative only as to that part of it,
called ratio decidendi.
Obiter dicta are observations made by the judge, but
which are not essential for the decision reached.
Bengal Immunity Co. Ltd v. State Of Bihar, 1955 ( 2 )
SCR 603
Court held that there is nothing in the Indian
constitution which prevents the supreme court from
departing from its previous decisions if it is
convinced of its error and beneficial effect of the
departure in the general interest of the public.
 Following categories of decision will not have binding force

Obiter dicta
A decision per incurium – A decision given in
ignorance of the terms of a statute or rule having
force of a statute.
A decision passed Sub – Silentio.
An order made with consent of parties and with
reservation that it should not be treated as
preceden.t
 Prospective Overruling

Doctrine of stare decisis is not an inflexible rule of law

and cannot be permitted to perpetuate error of supreme
court.
The basic objective of prospective overruling is to
overrule a precedent without having a retrospective effect.
Sri Sankari Prasad Singh Deo v. Union Of India ,1952
SCR 89
Sajjan Singh v. State Of Rajasthan 1965 SCR (1) 933
Golaknath v. State Of Punjab, 1967 AIR 1643
 His Holiness Kesavananda Bharati Sripadagalvaru and
Ors. v. State of Kerala and Anr. (1973) 4 SCC 225
Maj. Genl. A.S. Gauraya & Anr v. S.N. Thakur And ,1986
AIR 1440
SC held that its decisions is binding not only on future
proceedings but also to all pending proceedings as well.
Ganga Ram Moolchandani vs State Of Rajasthan, 2001
Supreme court enlarged the scope of prospective
overruling and ruled that doctrine need not be limited to
matter arising out of the constitution but can be extended
to interpretation of ordinary statutes a well
Videocon industries Ltd v. State of Maharashtra, AIR
2016 SC 2843 ( court should follow majority view not
the minority)
A decision cannot be considered as binding authority
in view of statutory provisions having undergone
legislative changes
 Advisory Jurisdiction ( Art 143)

If at any time it appears to the President that a

question of law or fact has arisen, or is likely to arise,
Which is of such a nature and of such public
importance that it is expedient to obtain the opinion
of the Supreme Court upon it.
President may refer the question to that Court for
consideration and the Court may, after such hearing
as it thinks fit, report to the President its opinion.
In re the Kerala education Bill, in 1958
Supreme court laid down following principles
1. SC has the discretion in the matter and in proper
case and for good reason to refuse to express any
opinion on the question submitted to it.
2. It is the president to decide what the question
should be referred.
3. Advisory opinion under Art 143 is not binding on
lower courts and is not a law within the meaning of
Art 141.
In re special courts Bill, in 1978
Court by 6:1 majority held that advisory jurisdiction
is binding on all courts and it is law within the ambit
of Art 141
In Ismail Faruqui v. Union of India, 1994 6 SCC 360
In the matter of Cauvery water disputes tribunal,
1992
SC rejected the contention that under Art 142, the
president can ask the court to reconsider any of its
previous decisions.
 State Judiciary ( Art 214 – 237)

High court
System of courts subordinate to the High Court
Appointment of Judges of High Court – Art
217( appointed by the president by consultation with
collegium(chief justice + 4 other judges)
Transfer of Judges - Collegium + Chief justice of two
High courts one from which the judge is transferred
and other receiving him.
Qualifications of High Court Judge ( Art 217)

Citizen of India
has for at least ten years held a judicial office in the
territory of India
 has for at least ten years been an advocate of a High
Court or of two or more such Courts in succession
Removal - Impeachment
 Writ Jurisdiction( Art 32 & 226)

Writ have been among the great safeguards provided

by the British judicial system for upholding the
rights and liberties of the people.
It is a procedure to endure to obtain speedy and
effective redress against illegal exercise of power by
the executive.
Judicial review is a process under which executive
or legislative actions are subject to review by the
judiciary.
 A court with authority for judicial review may
invalidate laws acts and governmental actions that
are incompatible with a higher authority: an
executive decision may be invalidated for being
unlawful or a statute may be invalidated for violating
the terms of a constitution
Related articles for the judicial review For Supreme
court Article 32(Right to Constitutional Remedy)
and Article 136(Special leave to appeal by the
Supreme Court).
 For High Court Article 226(Power of High Courts to
issue certain writs.) and Article 227(Power of
superintendence over all courts by the High Court
Judicial review is not concerned with policy making
functions of the state and especially involving
financial implications.
 Inter-relationship between Art 32 & 226

Art 32 & 226 exists independently of each other

Art 226 is wider in scope than Art 32
Under Art 32 Supreme court may issue writs for the
enforcement of Fundamental rights only
Under Art 226 High court may issue writs for the
enforcement of Fundamental rights but also any
other rights
Bengal Immunity Co v. State of Bihar, AIR 1955 SC
661( Art 265 – No tax can be levied without the
authority of law)
 Refuse to grant writs

Courts have discretion to refuse to grant writs if it is

satisfied that
 Aggrieved party can have adequate remedy elsewhere
 When a right or liability is created by a statute
which itself prescribe remedy then resort must be
made to that remedy than Writ .
 This rule is not rigid but it is some what flexible
 L.K Verma v. HMT Ltd, AIR 2006 SC 975 ( violation
of principles of natural justice & vires of act in
question)
 the conduct of the petitioner is such as to disentitle him to
relief under Writ
 Petition involves disputed question of fact
 The question of facts are best determined in an ordinary
civil suit after adducing evidence
 In appropriate cases the Supreme court or high court may
direct the appointment of committee
 Can take recourse in affidavits
 Even permit cross- examination
 Impugned law has not come into force
 The issue of writ would be futile
 Laches

 No period of limitation is prescribed for a high court

to exercise its power under Art 226
 But Writ petitions filed under inordinate delay are
usually dismissed.
 P.S Sadasivaswamy v. State of Tamil Nadu, AIR 1974
SC 2271( promotion of junior -14 years- after long
time filled petition)
 High court may condone the delay if there is
satisfactory explanation.
 HABEAS CORPUS

Latin term which means “you may have the body”

A writ of habeas corpus is issued for release of a person who
has been detained unlawfully by the State or by any private
individual.
A writ of habeas corpus is not issued if
the person concerned is not in unlawful detention
If the following conditions are not satisfied the detention is
illegal
 The detention is made in accordance with procedure
established by law. The law must be valid law and
procedure must be followed strictly
 The conditions laid down in Art 22 are not complied with
 MANDAMUS

Word means ‘order’ or ‘command’

This is an order by a superior court commanding a
person or a public authority to do or forbear to do
something in certain cases
Duty enforced must be a public duty
A private duty cannot be enforced by this Writ
 PROHIBITIO & CERTIORARI

PROHIBITIO & CERTIORARI

 Issued primarily to prevent inferior court or tribunal
from exceeding its jurisdiction
Act without or in excess of jurisdiction
violation of natural justice
Acts under a law which is unconstitutional
Proceeds in contravention of fundamental rights
If a legal authority takes up a dispute on which it has
no jurisdiction and decides the matter, then other
party can approach High Court on the ground of
absence of jurisdiction through a petition for
issuance of writ of certiorari,
If the case is still pending and has not been
finally decided yet then the aggrieved party can ask
for issuance of writ of prohibition and thereby
can prevent the inferior authority from proceeding
further in the case.
 QUO WARRANTO

‘What is your authority’

Holder of an office is called upon to show to the
court under what authority he holds the public
office
Prevent the person from holding an office which he
is not legally entitled to hold
 Locus Standi

For the enforcement of fundamental rights one has

to move the Supreme Court or the High Courts
directly by invoking Writ Jurisdiction of these courts
Before 1980s, only the aggrieved party could
personally knock the doors of justice and demand for
justice for his grievance and any other person who
was not personally affected could not knock the
doors of justice as a proxy for the victim
Thereafter, the traditional rule of locus standi was
liberalized to give way to Public Interest
Litigation (PIL).
 Through PIL, the Court increased the concept of
‘person aggrieved’ to include any public-spirited
individual or association, provided they act for
proper cause of justice, and are not actuated by
political motives or other forces
Hussainara Khatoon & Others v. Home Secretary,
State of Bihar, Patna AIR 1979 SC 1369
Bandhua Mukti Morcha v. Union of India
and Others AIR 1984 SC 802
M. C. Mehta & Another v. Union of India & Others
AIR 1987 SC 1086
Vellore Citizens Welfare Forum v. Union of India
and Others AIR 1996 SC 2715
M.C. Mehta v. Union of India and Others (1988) 1
SCC 471– (Ganga Water Pollution Case)
 Jurisdiction Of High Court

Art 215 –A court of record

Art 227 - Power of Superintendence
 Art 227 - Power of Superintendence

 Every High Court shall have superintendence over

all courts and tribunals throughout the territories
interrelation to which it exercises jurisdiction
the High Court may
 call for returns from such courts;
  make and issue general rules and prescribe forms
for regulating the practice and proceedings of such
courts; and
 prescribe forms in which books, entries and accounts
shall be kept by the officers of any such courts
 Scope of Art 227

When statutory right to appeal has been provided

High court will not entertain petition under Art 227
Against the judgment and order of District judge
there is remedy available under sec 115 CPC to file
revision petition then Art 227 cannot be enforced
If Sec 115 is specifically barred by a state enactment
only then petition under Art 227 of constitution will
lie
Waryam Singh v. Amarnath. AIR 1954 SC 215
Supreme Court held that the power of
superintendence is not confined to administrative
superintendence but also judicial superintendence
over all subordinate courts within the jurisdiction
D .N Banerji v. P.R Mukherji, AIR 1953 SC 58
Whether on fact of the case dismissal of employees by the
industrial tribunal was wrongful or justified
Supreme court held that High court cannot interfere with the
decision of tribunal under Art 227 unless there has been
 Grave miscarriage of justice
 refuses to exercise jurisdiction vested in it by law
 Exceeds its jurisdiction
 Assumes erroneous jurisdiction
 Acts against natural justice
 Findings are based on no evidence
 Error of law apparent on face of record
 Art 226 & 227

Certiorari & prohibition under Art 226 only quashes

or annuls proceedings but cannot substitute its own
decision but this can be done under Art 227
Art 227 can be exercised suo motto by High court but
cannot be done under Art 226
 SUBORDINATE COURTS( Arts 233 -237)

Appointment, posting and promotion of district judge shall be

made by the Governor of the state in consultation with the High
Court
Qualification of a District Judge-
1. He has been an advocate or a pleader for 7 years
2. His name is recommended by the High court for appointment
 Chandra Mohan v. State of U.P, AIR 1966 SC 1987
( Governor appointed- selection committee for appointment
of district judges not in consultation with High court-
Appointment made without consultation with High court are
illegal)
 Independent of Judiciary

Security of tenure – impeachment

Salaries and allowance fixed by constitution
Parliament can extend, but cannot curtail the
jurisdiction and power of the Supreme Court.
No discussion in legislature on the conduct of the
judges
Power to punish for its contempt
Separation of Judiciary from executive
Appointment of judges by the executive with
consultation with collegium