THE INDIAN JUDICIARY UNDER THE CONSTITUTION

Author(s): A. G. Noorani
Source: Verfassung und Recht in Übersee / Law and Politics in Africa, Asia and Latin
America , 1976, Vol. 9, No. 3 (1976), pp. 335-341
Published by: Nomos Verlagsgesellschaft mbH

Stable URL: https://www.jstor.org/stable/43108524

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 THE INDIAN JUDICIARY
UNDER THE CONSTITUTION

By A. G. Noorani

It is not surprising that the most important issue in the recent discu
on amendments to the Constitution has been the scope of judic
legislation and of executive action. For, the judiciary occupies a p
under the Indian Constitution. As India's first Attorney-General
most distinguished jurists, Mr. M. C. Setalvad, points out in the H
"an impartial and independent judiciary was gradually built up
times. The Constitution of India continued and strengthened thi
incorporating into itself what may be called an integrated judicial sy
to function impartially beyond the range of executive influence a
except by Parliament under circumstances prescribed by the Co
judicial system of this nature was essential in order to preserve an
ideals of democracy and freedom and of the Rule of Law em
Constitution"1.
While it is debatable whether India's political structure is federal with unitary
features or unitary with federal features, it is incontestable that its judicial structure
is unitary. Both Union and State laws are interpreted in a single judicial system.
There is no division of judicial work between Union courts and State courts.
At the apex of the hierarchy of courts is the Supreme Court of India with jurisdic-
tion wider than that of any federal Supreme Court. The Constitution confers on
it original jurisdiction in disputes between the Union and the States, and between
the States inter se "if and in so far as the dispute involves any question (whether of
law or fact) on which the existence or extent of a legal right depends" (Art. 131)
and original jurisdiction for the enforcement of the fundamental rights. Indeed,
the citizen's right to move the Supreme Court directly for this purpose is itself a
fundamental right (Art. 32). The Supreme Court is, besides, the highest court of
appeal in cases involving "a substantial question of law" as to the interpretation
of the Constitution. (Art. 132), civil cases which involve "a substantial question of
law of general importance" which in the opinion of the High Court, the highest
court in a State, "needs to be decided by the Supreme Court" (Art. 133), and in
criminal cases if the High Court "has on appeal reversed an order of acquittal of an
accused person and sentenced him to death; or 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; or certifies that the case
is a fit one for appeal to the Supreme Court" (Art. 134).
Furthermore, 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 country, except a court
or tribunal constituted under any law relating to the Armed Forces (Art. 136).

1 M. C. Setalwad, The Common Law in India; Hamlyn Lectures 12th series; Stevens & Sons Ltd., London;
1960; p. 200.

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Next in the hierarchy come the High Courts. "There shall be a High Court for
each State" the Constitution ordains (Art. 214). Their jurisdiction is the same
as it was before the Constitution came into force on January 26, 1950 (Art. 225);
that is, plenary in all matters as an appellate court under the Code of Civil
Procedure and the Code of Criminal Procedure. The Constitution confers on High
Courts the power of superintendence over all courts and tribunals within the
State (Art. 227) and ensures that no court below it may decide any "substantial
question of law" as to the interpretation of the Constitution (Art. 228). But the
most striking provision is Article 226 which empowers every High Court "to
issue to any person or authority, including in appropriate cases any Government"
directions, orders, or writs "including writs in the nature of habeas corpus,
mandamus, prohibition, quo warrants and certiorari" for the enforcement of the
fundamental rights "and for any other purpose". Thus while the Supreme Court's
original jurisdiction in this respect is confined to enforcement of the fundamental
rights "the High Courts" jurisdiction is wider inasmuch as it can issue writs "for
any other purpose". This consists in the main of enforcing sheer legality. The
citizen's fundamental right guaranteed by the Constitution may not be affected
but an executive officer or an administrative tribunal might ignore statutory
provision or requirements of natural justice and violate his legal rights, apart from
the fundamental rights.
The writs named in Art. 226 are the well known prerogative writs issued by the
High Court of Justice in England. The ancient writ of habeas corpus is designed to
test the legality of an imprisonment; mandamus ensures that the mandate of the
legislature is carried out and statutory duty performed; quo warrants is issued
when a public office is held without legal warrant; prohibition is issued when a
tribunal proceeds to exercise jurisdiction not vested in it while certiorari is issued
to quash the decision of a tribunal which has acted without jurisdiction or com-
mitted an error of law apparent on the face of the record. The High Courts have
exercised what is popularly known as their writ jurisdiction under Art. 226 freely
though within limits defined in a series of rulings of the Supreme Court. A rich
body of administrative law has thus built up. It provides the citizen with a
speedy, efficacious and inexpensive remedy against administrative excess or breach
of law by the administration.
As Mr. Setalwad emphasised in the Hamlyn Lectures, only a judiciary firmly
protected from all pressures could be adequate to perform the wide and weighty
functions which the Constitution imposes upon the Indian judiciary. Judges of the
Supreme Court as well as of the High Courts are appointed by the President in
consultation with the Chief Justice of India. In the case of High Court Judges the
Chief Justice of the High Court and the Governor of the State are also consulted.
Judges of the Supreme Court and the High Courts are irremovable except by
an order of the President passed after an address by each House of Parliament
supported by a majority of the total membership of that House and by a majority
of not less than two-thirds of the members of that House present and voting has
been presented to the President in the same session for such removal "on the
ground of proved misbehaviour or incapacity." (Art. 124 [4])
These bare provisions of the Constitution on the judicial set-up reveals a certain
outlook, a deliberate design. India's leaders saw at first hand during the struggle

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for freedom the high quality of administration of justice during British rule,
barring occasional lapses. There were some notable trials involving political
opponents of the British Raj which British judges conducted with manifest im-
partiality14.
The framers of India's Constitution were statesmen of vision and lawyers of high
calibre. They knew, both, the achievements and the lapses of the judiciary during
the Raj and were determined to set up an independent non-political judiciary.
The Constituent Assembly appointed a special committee on the Supreme Court,
consisting of five of the most distinguished jurists in the country. They were Mr. S.
Varadachariar, Sir Alladi Krishnaswami Ayyar, Sir B. L. Mitter, Dr. K. M. Munshi,
and Sir B. N. Rau. They said, in their Report dated May 21, 1947, "We do not
think that it will be expedient to leave the power of appointing judges of the
Supreme Court to the unfettered discretion of the President of the Union2."
They recommended two methods of making such appointments. These were not
accepted. But while the particular methods prescribed by the committee were
rejected, its plea that the President should not have "unfettered discretion" in
regard to appointments to the higher judiciary was accepted. The obligatory
consultation with the Chief Justice of the Supreme Court was designed as a check
on the President's power.
Introducing in the Assembly, on July 15, 1947, the Report of the Assembly
Committee on the Principles of a model provincial Constitution, Sardar
Vallabhbhai Patel said: "The Committee has given special attention to the
appointment of Judges of the High Court. This is considered to be very
important by the Committee and as the judiciary should be above suspicion and
should be above party influences, it was agreed that the appointment of High
Court judges should be made by the President of the Union in consultation with
the Chief Justice of the Supreme Court, the Chief Justice of the Provincial High
Court and the Governor with the advice of the Ministry of the provinces
concerned. So there are many checks provided to ensure fair appointments to the
High Court3." Mr. Jawaharlal Nehru later introduced the Report on the
Principles of the Union Constitution and he was satisfied with the Supreme
Court Committee's Report4.
In the Constituent Assembly various amendments were moved in order to restrict
the President's power to appoint judges, such as consulting a Standing Committee
of Parliament or confirmation by a two-thirds majority of Parliament. They were
rejected. It was felt that the requirement of consultation, with the Chief Justice
was a good check. The final and most authoritative exposition on the basis of
which the Assembly adopted the relevant provisions was by the Chairman of the
Drafting Committee, Dr. B. R. Ambedkar. His exposition in the Assembly on
May 24, 1949 deserves to the quoted in extenso. He said "There can be no
difference of opinion in the House that the judiciary must both be independent of
the executive and must also be competent in itself. And the question is how these
two objects could be secured. There are two different ways in which this matter is

la See the author's "Indian Political Trials" Sterling Publishers, New Delhi 1976.
2 Constituent Assembly Debates Vol. IV, p. 731.
3 C. A. D. Vol. IV, p. 579.
4 A. U. VOI. IV, p. /1U.

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governed in other countries. In Great Britain the appointments are made by the
Crown, without any kind of limitation whatsoever which means by the executive
of the day. There is the opposite system in the United States where, for instance,
appointments to offices of the Supreme Court as well as chief offices of the State
shall be made only with the concurrence of the Senate in the United States. It
seems to me, in the circumstances in which we live today, where the sense of
responsibility has not grown to the same extent to which we find it in the United
States, it would be dangerous to leave the appointments to be made by the
President, without any kind of reservation or limitation, that is to say, merely on
the advice of the executive of the day. Similarly, it seems to me that to make
every appointment which the executive wishes to make subject to the concurrence
of the Legislature is also not a very suitable provision. Apart from its being
cumbrous, it also involves the possibility of the appointment being influenced by
political pressure and political considerations. The draft article, therefore, steers
a middle course. It does not make the President the supreme and the absolute
authority in the matter of making appointments. It does not also import the
influence of the Legislature. The provision in the article is that there should be
consultations of persons who are ex hypothesi, well qualified to give proper
advice in matters of this sort, and my judgment is that this sort of provision may
be regarded as sufficient for the moment5. "
This is the rationale behind the elaborate Constitutional provisions on judicial
appointments. It might be mentioned that when the draft of the new Constitution
was ready for detailed discussion a conference of the Judges of the Federal Court
and the Chief Justices of the High Courts was held in March 1948. It prepared a
memorandum containing their unanimous views on matters affecting the judiciary6.
Judicial review of legislation is beset with controversy. No sooner had the Supreme
Court started functioning under the Constitution in 1950 than criticism was heard
of its performance. In one of the earliest cases, Chief Justice Patanjali Sastri pointed
out that the Constitution contained express provisions for judicial review of legis-
lation. "If, then, the courts in this country face up to such important and none too
easy task, it is not out of any desire to tilt at legislative authority in a crusader's
spirit, but in discharge of a duty plainly laid upon them by the Constitution. This
is especially true as regards the 'fundamental rights', as to which this court has
been assigned the role of a sentinel on the qui vive. While the Court naturally
attaches great weight to the legislative judgment, it cannot desert its own duty to
determine finally the constitutionally of an impugned statute. We have ventured
on these obvious remarks because it appears to have been suggested in some
quarters that the courts in the new set up are out to seek clashes with the
legislatures in the country7."
By 1958 the controversy had gone far enough for the Law Commission to remark
that "In the opening years of the Republic views were expressed by important
persons which led to an impression in the public mind that judges, law courts and
lawyers were superfluous institutions which hindered the progress of the social
welfare State, which is the ideal of our Constitution. These views were repeated
in some of the States by persons of lesser importance. Thus, instead of appreciating
5 C. A. D. Vol. VIII, p. 258.
6 The Framing of India's Constitution; Select Documents; Edited by B. Shiva Rao; New Delhi, 1968;
Vol. IV, p. 195.
7 V. G. Row vs. State of Madras AIR 1952, S. C. 199.

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the more important role, which law and those administering it must play in a
democratic social welfare State the public came to look down upon law, lawyers
and those holding judicial offices and regard them as obstacles to the progress of
the nation. Indeed not infrequently, judicial pronouncements were treated with
scant respect and commented upon in assemblies and public platforms8."
The Commission critcised the manner in which judicial appointments were being
made. "It is widely felt that communal and regional considerations have prevailed
in making the selection of the Judges. The idea seems to have gained ground that
the component States of India should have, as it were, representation on the
Court. Though we call ourselves a secular State, ideas of communal representation,
which were viciously planted in our body politic by the British, have not
entirely lost their influence. What perhaps is still more to be regretted is the general
impression, that now and again executive influence exerted from the highest
quarters has been responsible for some appointments to the Bench9. " It cannot,
however, be said that the judges were altogether blameless. Mr. M. C. Setalvad's
memoirs mention the failing of some of the retiring judges undignifiedly "trying
to secure some suitable employment10." This is partly due to ambition and
partly to the low scale of judicial salaries which has been the subject of
legitimate criticism11.
The Supreme Court's ruling in Golak Nath's case decided in 1967 to the effect
that the word "law" Art. 13 (2) covers a constitutional amendment so that
Parliament had no power even by constitutional amendment under Art. 368 to
take away or abridge any of the fundamental rights was unfortunate. It was
followed by two other rulings, in the banks nationalisation casella and the case
of the former Indian Princes' Privy Purse in which again the Court ruled against
the Union. The correctness of these rulings in law is, with respect doubtful. In 1973
the full court of the Supreme Court overruled Golak Nath's case in the case of
Keshavananda Bharati but held that Article 368 which empowers Parliament to
amend the Constitution by a special procedure, "does not enable Parliament to
alter the basic structure or framework of the Constitution." The Court split
narrowly, by 7 to 6. On April 25, 1973 the day after the judgment was delivered
the President broke a nearly quarter century's convention by superseding three
seniormost judges and appointing Mr. Justice A. N. Ray as Chief Justice of India.
Hitherto, the seniormost Judge had always been appointed Chief Justice. The Bar
protested vigorously against this action. The superseded judges resigned12.
This sad precedent was followed when in May 1974, Mr. Justice R. S. Narula
was appointed Chief Justice of the Punjab and Haryana High Court superseding
the senior-most judge, Mr. Prem Pandit, who resigned in protest.
The Proclamation of Emergency issued by the President on June 26, 1975 on the
ground that "the security of India is threatened by internal disturbances" opened
a new chapter in the country's constitutional development. A far more onerous
and delicate responsibility was cast on the judiciary. The High Courts were able to

8 Reform of Judicial Administration; 14th Report, Law Commission of India; Ministry of Law
Government of India, New Delhi; 1958; Vol. I, p. 78.
9 Ibid page 34.
10 M. C. Setalwad; My Life: Law and Other Things; Tnpathi, Bombay; 1970; p. 509.
11 H. M. Seervai, Constitutional Law of India; Tripathi Bombay; 1976. Vol. II, p. 1374.
IIa See Bryde "Verfassung und Recht in Ubersee" (1970), p. 195.
12 Only the bare outline the events from 1967 to 1973 are given here, ror details vide Mr. b. c>. ben s
article "Constitutional Storm in India" "Verfassung und Recht in Ubersee" (1974), pp. 33-43.

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set aside executive actions as being contrary to the law though the fundamental
rights had been suspended by the Presidential Orders made under the Constitution.
The eminent journalist Mr. Kuldip Nayar's wife won her habeas corpus petition
for his release in the Delhi High Court in September 1975. The Bombay High
Court allowed a petition filed by a former Judge of the Court Mr. N. P. Nathwani
and some other lawyers for a declaration that they had a right to hold a
meeting of lawyers to discuss the civil liberties and the rule of law13. The Court
also struck down the censor's decisions in another case while upholding some
others14. The Gujarat High Court struck down some parts of the Censorship
Order made under the Defence and Internal Security of Indian Rules, 197115. All
these rulings are under appeal to the Supreme Court.
On April 28, 1976 the Supreme Court by a majority of four to one held that a
petition for habeas corpus is not maintainable in view of the fact
that the right to move the Court for the enforcement of the fundamental right
guaranteed by Art. 21 ("Now person shall be deprived of his life or personal liberty
except according to procedure established by law") was suspended16.
In May 1976 the President in consultation with the Chief Justice of India and in
exercise of powers conferred on him under Art. 222 of the Constitution ordered
the transfer of 16 High Court Judges including two Chief Justices17. The Govern-
ment claimed that the orders were made to ensure that at least one-third of the
Judges of each High Court were drawn from other States as recommended by the
States Reorganisation Commission in 1955. Its critics contended that this would
adversely affect the independence of the judiciary. Meanwhile far reaching con-
stitutional changes were recommended by a committee appointed by the President
of the Congress Party to study and propose constitutional changes. The Com-
mittee headed by the former Foreign Minister Mr. Swaran Singh submitted its final
proposals on May 22, 197618. The salient features affecting the judiciary are:
"At present, the constitutional validity of a law, whether Central or State, may be
challenged in any High Court or in the Supreme Court. The Committee is of
the opinion that the Constitution should be suitably amended so as to provided
that the constitutional validity of a Central law and any rule, regulation or by-law
made thereunder may be challenged only in the Supreme Court ..."
„The number of judges of the Supreme Court who are to sit for the purpose of
deciding any case involving a question of constitutional validity of a law shall be
not less than seven, and the decision of the court declaring a law invalid must have
the support of not less than two-thirds of the number of judges constituting the
bench."
"The number of judges of a High Court for the same purpose shall be not
less than five, and the decision of the court declaring a law invalid must be
supported by not less than two-thirds of the number of judges constituting the
bench. In a High Court where the total number of judges is less than five, the full
court shall sit and the decision as to the validity of a law should have the support
of the whole court."

13 N. P. Nathwani vs. Commissioner of Police. 78 Bombay Law Reporter 1.

14 Binod Rao vs. M. R. Masani 78 Bom. 125.
15 C. Vaidya vs. D'Penha S. C. A. No. 141 oř 1976 decided on March 22, 1976.
16 Addi. Dist. Magistrate, Jabalpur vs. Shivkant Shukla AIR 1976, S. C.
17 The Hindu; May 30, 1976.
18 For text vide The Times of India May 23, 1976.

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The committee recommended the amendment of Article 226 by the deletion of
the words "and for any other purpose". The existing power of the High Courts to
issues writs for the enforcement of fundamental rights will continue. A new clause
is to be inserted in Article 226 to the effect that the power conferred by clause (1)
of that article to issue directions, orders or writs to any Government, authority or
person may also be exercised by any High Court "in cases in which there has
been a contravention of any provision of the Constitution other than any
fundamental rights or the contravention of any provision of a statutory law
where such contravention has resulted in a substantial failure of justice.
The exercise of this power should, however, be subject to the proviso that where
an alternative remedy is available under the Constitution or any provision of a
statutory law, no such direction order or writ shall be issued."
The Committee recommended that tribunals should be set up to decide service
matters, industrial and labour disputes, and disputes relating to revenue, land
reforms, ceiling on urban property, and procurement and distribution of food
grains and other essential commondities. The right to apply to the Supreme Court
for special leave to appeal, under Art. 136 of the Constitution, from the decision
of any such tribunal should remain. But the Committee recommended not only
that the writ jurisdiction of the Supreme Court, under Art. 32, and of the
High Courts, under Art. 226, shall be excluded, but also that the High Courts
should cease to have the powers of superintendence over tribunals which they
exercise under Art. 227. The Committee, creditably, made a substantial concession
in its recommendation on Art. 226 in deference to public opinion. For, in its
Interim Report published on April 13, 1976 it simply recommended deletion
of the words "for other purposes" in Art. 226.
The final proposals have been approved by the general body of the Congress,
the All India Congress Committee. Constitutional amendment along these lines will
considerably narrow the scope of judicial review and, to that extent, the power and
authority of the Courts.
The test for judging any proposals for constitutional amendment was well
formulated in a study of the Supreme Court's performance from 1950 to 1959
by an American scholar Prof. George H. Gadbois, Jr. published in 1969
"Compared with most of the developing countries where Courts are fragile
institutions performing functions only peripheral to the functioning of the
political systems, in India the higher judiciary is exceptionally well institutionalized
and strong, and has played an important part in sustaining constitutional demo-
cracy19." Will the Indian judiciary be able to perform this role effectively?

19 Selection, Background Characteristics, and Voting Behaviour of Indian Supreme Court Judges 1950 - 1959
in Comparative Judicial Behaviour. Edited by Glendon Schubert and David J. Danelski; Oxford Uni-
versity Press; 1969; p. 221.

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