Long story short
The Judiciary
Supreme Court
Article 124 deals with the Establishment and Constitution of the Supreme Court. It states that there shall be a Supreme Court of India consisting of a Chief Justice of India and, until Parliament prescribes a larger number, of not more than seven other Judges. Supreme Court(No. of Judges) Act of 1956 deals with it in the law. 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 and shall hold office until he attains the age of sixty-five years. A person shall not be qualified for appointment as a Judge of the Supreme Court unless he is a citizen of India and has been for at least five years a Judge of a High Court or of two or more such Courts in succession; or has been for at least ten years an advocate of a High Court or of two or more such Courts in succession; or is, in the opinion of the President, a distinguished jurist. A Judge of the Supreme Court shall not be removed from his office except by 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.
In the Constitution, there are no provisions for the impeachment of a judge. Impeachment is provided for the president and no one else. The ground for president impeachment is a “violation of the constitution” and for the removal of a judge is “misbehaviour or incapacity”. When the motion of impeachment is passed by the parliament the president ceases to be president, but in case of removal, the president has to issue necessary orders.
Article 125 deals with the Salaries and others of Judges. It states that there shall be paid to the Judges of the Supreme Court such salaries as may be determined by Parliament by law. And the law governing this is the High Court and Supreme Court Judges (Condition of Service) Act.
Article 126 deals with the Appointment of an acting Chief Justice. It states that when the office of Chief Justice of India is vacant or when the Chief Justice is, by reason of absence or otherwise, unable to perform the duties of his office, the duties of the office shall be performed by such one of the other Judges of the Court as the President may appoint for the purpose. This article ensures that there is no disruption in the functioning of the Supreme Court due to the vacancy or incapacity of the Chief Justice of India.
Article 127 deals with the Appointment of ad hoc Judges. It states that if at any time there should not be a quorum of the Judges of the Supreme Court available to hold or continue any session of the Court, the Chief Justice of India may, with the previous consent of the President and after consultation with the Chief Justice of the High Court concerned, request in writing the attendance at the sittings of the Court, as an ad hoc Judge, for such period as may be necessary, of a Judge of a High Court duly qualified for appointment as a Judge of the Supreme Court to be designated by the Chief Justice of India. The article also states that it shall be the duty of the Judge who has been so designated, in priority to other duties of his office, to attend the sittings of the Supreme Court at the time and for the period for which his attendance is required, and while so attending he shall have all the jurisdiction, powers and privileges, and shall discharge the duties, of a Judge of the Supreme Court. This article ensures that there is no delay or interruption in the functioning of the Supreme Court due to the lack of a quorum of Judges.
Article 128 deals with the Attendance of retired Judges at sittings of the Supreme Court. This article enables the Chief Justice of India to invite retired Judges to attend sittings of the Supreme Court in case of necessity or convenience.
Article 129 of the Indian Constitution declares that the Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself. A court of record is a court whose acts and judicial proceedings are recorded for perpetual memory and testimony. Such records are admitted to be of evidentiary value and cannot be questioned when produced before any court. They are recognised as legal precedents. The power to punish for contempt of court is inherent in a court of record. Contempt of court means willful disobedience to any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court; or scandalising the authority of the court; or interfering with the due course of any judicial proceeding; or obstructing the administration of justice in any other manner.
Article 130 of the Indian Constitution states that the Supreme Court shall sit in Delhi or in such other place or places, as the Chief Justice of India may, with the approval of the President, from time to time, appoint. This article gives the Chief Justice of India the discretion to decide the seat or seats of the Supreme Court in consultation with the President. However, so far, the Supreme Court has not sat outside Delhi, except for a few occasions when it held sittings in circuit benches at some places like Mumbai, Chennai and Kolkata.
Article 131 deals with the Original jurisdiction of the Supreme Court. It states that subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute— (a) between the Government of India and one or more States; or (b) between the Government of India and any State or States on one side and one or more other States on the other; or (c) between two or more States, 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. The article also provides that the said jurisdiction shall not extend to a dispute arising out of any treaty, agreement, covenant, engagement, sanad or other similar instrument which, having been entered into or executed before the commencement of this Constitution, continues in operation after such commencement, or which provides that the said jurisdiction shall not extend to such a dispute. This article gives the Supreme Court the exclusive authority to adjudicate disputes between the Centre and the States or between two or more States involving legal rights. Such disputes cannot be brought before any other court.
Original jurisdiction is the power of a court to hear and decide a case for the first time, as opposed to appellate jurisdiction, when a higher court has the power to review a lower court’s decision. A court having original jurisdiction is also called a trial court. In India, the Supreme Court has original jurisdiction in certain types of cases, such as disputes between the Centre and the States or between two or more States, involving legal rights. The High Courts also have original jurisdiction in some matters, such as writ petitions, civil suits of high value, and cases involving company law, admiralty law, matrimonial law, contempt of court etc.
Article 132 deals with the Appellate jurisdiction of the Supreme Court in appeals from High Courts in certain cases. It states that an appeal shall lie to the Supreme Court from any judgment, decree or final order of a High Court in the territory of India, whether in a civil, criminal or other proceeding, if the High Court certifies under article 134A that the case involves a substantial question of law as to the interpretation of this Constitution. The article also states that where such a certificate is given, any party in the case may appeal to the Supreme Court on the ground that any such question as aforesaid has been wrongly decided. This article gives the Supreme Court the power to hear appeals from High Courts in constitutional matters, subject to the certification by the High Courts.
Appellate jurisdiction is the power of a higher court to review and potentially overturn the decisions made by lower courts. Courts that have such authority are called appellate courts. The appellate courts have the power to reverse or modify the lower court’s decision based on the law and the facts of the case. In India, the Supreme Court has appellate jurisdiction over the High Courts in civil, criminal and constitutional matters, subject to certain conditions. The Supreme Court can also grant special leave to appeal from any judgment, decree or final order of any court or tribunal in India.
Article 133 deals with the appellate jurisdiction of the Supreme Court in appeals from High Courts in regard to civil matters. It states that an appeal can be made to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court if the High Court certifies that the case involves a substantial question of law of general importance and that it needs to be decided by the Supreme Court. The article also states that any party appealing to the Supreme Court can also raise a question of law as to the interpretation of the Constitution. However, no appeal can be made to the Supreme Court from the judgment, decree or final order of one Judge of a High Court unless Parliament by law otherwise provides.
Article 134 deals with the appellate jurisdiction of the Supreme Court in regard to criminal matters. It states that an appeal can be made to the Supreme Court from any judgment, final order or sentence in a criminal proceeding of a High Court if the High Court has either reversed an order of acquittal and sentenced the accused to death, or withdrawn a case from a subordinate court and convicted and sentenced the accused to death, or certified that the case is a fit one for appeal to the Supreme Court. The article also states that Parliament may by law confer on the Supreme Court any further powers to entertain and hear appeals from any criminal proceeding of a High Court subject to certain conditions and limitations.
Article 134A deals with the certificate for the appeal to the Supreme Court. It states that every High Court, passing or making a judgment, decree, final order or sentence, referred to in Article 134 or Article 132 or Article 133, may, on its own motion, or shall, if an oral application is made by the party aggrieved, determine whether a certificate of the nature referred to in those articles may be given in respect of that case. This means that the High Court has the power and duty to decide whether a case is fit for appeal to the Supreme Court under certain conditions.
Article 136 deals with the special leave to appeal by the Supreme Court. The Supreme Court has a residuary power to entertain and hear appeals from any decision of any court or tribunal, even if there is no specific provision for such appeal in the Constitution or any other law. But not available with military tribunals or courts.
Article 137 deals with the review of judgments or orders by the Supreme Court. It states that subject to the provisions of any law made by Parliament or any rules made under Article 145, the Supreme Court shall have the power to review any judgment pronounced or order made by it. This means the Supreme Court can reconsider and modify its own decisions, subject to certain conditions and limitations. A review petition is a legal remedy that is supported by this provision. It is not necessary that only parties involved in a matter can ask for the judgment to be reviewed. Anyone who feels aggrieved by a decision can file a review petition.
Article 138 deals with the enlargement of the jurisdiction of the Supreme Court. It states that the Supreme Court shall have such further jurisdiction and powers with respect to any of the matters in the Union List as Parliament may by law confer. This means that the Supreme Court can exercise additional authority over any subject that falls under the exclusive domain of the Union government, if Parliament passes a law to that effect. The article also states that the Supreme Court shall have such further jurisdiction and powers with respect to any matter as the Government of India and the Government of any State may by special agreement confer, if Parliament by law provides for the exercise of such jurisdiction and powers by the Supreme Court. This means that the Supreme Court can also deal with any matter that is agreed upon by the central and state governments, if Parliament makes a law to enable such agreement.
Article 139 deals with the conferment on the Supreme Court of powers to issue certain writs. It states that Parliament may by law confer on the Supreme Court power to issue directions, orders or writs, for any purposes other than those mentioned in clause (2) of Article 32. This means that Parliament can empower the Supreme Court to issue various kinds of orders or commands to enforce the fundamental rights or any other rights of the citizens, except those that are already covered by Article 32. Article 32 gives the right to constitutional remedies to aggrieved persons who can directly approach the Supreme Court for the enforcement of their fundamental rights.
Article 139A deals with the transfer of certain cases. It states that where 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 and the Supreme Court is satisfied on its own motion or an application made by the Attorney General of India or by a party to any such case that such questions are substantial questions of general importance, the Supreme Court may withdraw the case or cases pending before the High Court or the High Courts and dispose of all the cases itself. This means that the Supreme Court can consolidate and decide multiple cases that raise common legal issues of national significance, instead of leaving them to be decided by different High Courts. The article also states that 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. This means that the Supreme Court can also shift any case from one High Court to another High Court for ensuring fair and speedy justice. Added via 44th C(A)A of 1978.
Article 140 deals with the ancillary powers of the Supreme Court. It states that Parliament may by law make provision for conferring upon the Supreme Court such supplemental powers not inconsistent with any of the provisions of this Constitution as may appear to be necessary or desirable for the purpose of enabling the Court more effectively to exercise the jurisdiction conferred upon it by or under this Constitution. This means that Parliament can grant additional powers to the Supreme Court to help it perform its functions and duties more efficiently and effectively, as long as they do not violate any other part of the Constitution.
Article 141 deals with the law declared by the Supreme Court to be binding on all courts. It states that the law declared by the Supreme Court shall be binding on all courts within the territory of India. This means that the general principles laid down by the Supreme Court are binding on each individual, including those who are not a party to an order.
Article 142 provides discretionary power to the Supreme Court to pass decrees or make orders necessary for doing complete justice in any cause or matter pending before it. Any decree or order passed is enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament or, until provision in that behalf is so made, in such manner as the President may by order prescribe. The Supreme Court has the power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself. Article 142 supplements the powers already conferred upon the Supreme Court under the Constitution to guarantee that justice is done and in doing so the Court is not restrained by lack of jurisdiction or authority of law.
Article 143 deals with the advisory jurisdiction of the Supreme Court. It states that 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, he 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 thereon. This means that the President can seek the advice of the Supreme Court on any matter of national or constitutional significance, and the Supreme Court can give its opinion after hearing the arguments of the parties concerned. However, such an opinion is not binding on the President or any other authority. The article also states that the President may, notwithstanding anything in clause (1) of Article 131, refer a dispute of the kind mentioned in that clause to the Supreme Court for opinion and the Supreme Court shall, after such hearing as it thinks fit, report to the President its opinion thereon. This means that the President can also refer a dispute between the Centre and one or more States or between two or more States to the Supreme Court for its advice, even though such dispute falls within the original jurisdiction of the Supreme Court.
Article 144 directs the civil and judicial authorities to act in aid of the Supreme Court. It mandates that all authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court. This means that all the civil and judicial officers and institutions have to respect and comply with the orders and judgments of the Supreme Court and assist it in the exercise of its jurisdiction. The article also implies that no other authority can claim exclusive or overriding power over the Supreme Court or interfere with its functioning. The article is intended to ensure the supremacy of the Supreme Court as the highest judicial authority in India and to protect its independence and integrity.
Article 145 of the Indian Constitution allows the Supreme Court to make rules for regulating the practice and procedure of the Court, including rules for persons practising before the Court, subject to the provisions of any law made by Parliament. The Supreme Court may from time to time, with the approval of the President, make rules for regulating generally the practice and procedure of the Court including rules as to the persons practising before the Court. However, any law enacted by the Supreme Court for its own operations and those of its employees must be approved by the Indian Parliament, and no rule can be made without approval from the President of India.
Article 146 of the Indian Constitution deals with the officers and servants and the expenses of the Supreme Court. Appointments of officers and servants of the Supreme Court shall be made by the Chief Justice of India or such other Judge or officer of the Court as he may direct, subject to the approval of the President and consultation with the Union Public Service Commission in some cases. It is subjected to laws made by the Parliament. All expenses are charged to the Consolidated Fund of India and the money collected by the court will be part of this fund.
Due process of law and procedure established by law are two doctrines that relate to the protection of life and personal liberty of individuals against the arbitrary actions of the state. The main difference between them is that due process of law checks whether the law is fair, just and not arbitrary, while procedure established by law only checks whether the law has been duly enacted by the legislature or the concerned body. In other words, due process of law gives more power to the judiciary to review the laws and their implementation, while procedure established by law gives more power to the legislature to make any laws as long as they follow the correct procedure. Due process of law is followed in the United States of America, while procedure established by law is followed in India. However, in recent times, the Supreme Court of India has adopted a more liberal and expansive interpretation of Article 21 of the Constitution, which states that no person shall be deprived of his life or personal liberty except according to a procedure established by law. The Supreme Court has held that the procedure established by law must also be fair, just and reasonable, and not violative of the fundamental rights of the citizens. Thus, the Supreme Court has incorporated some elements of due process of law into the Indian constitutional framework.
Some examples of due process of law are:
- The government obtains a warrant from a judge before searching or seizing a person’s property, based on probable cause.
- The Supreme Court declares a law unconstitutional if it violates the principles of justice and equity, or infringes on the rights of the citizens.
Some examples of procedures established by law are:
- The Preventive Detention Act of 1950, which allowed the government to detain a person without trial for up to one year, was upheld by the Supreme Court as a valid law under Article 21, as it was passed by the Parliament following the proper procedure.
- The Aadhaar Act of 2016, which mandated the use of Aadhaar number for availing various government benefits and services, was challenged on the grounds that it violated the right to privacy of the citizens. The Supreme Court held that the Act was a valid law under Article 21, as it was enacted by the Parliament following the proper procedure and it served a legitimate state interest.
- The Citizenship (Amendment) Act of 2019, which granted citizenship to non-Muslim refugees from Afghanistan, Bangladesh and Pakistan, was challenged on the grounds that it violated the right to equality and secularism of the Constitution. The Supreme Court has not yet decided on the validity of the Act, but one possible argument in its favour could be that it was passed by the Parliament following the proper procedure and it aimed to protect the persecuted minorities in neighbouring countries.
High Courts
Article 214 states that there shall be a High Court for each State. The High Court is the highest appellate court within State authority.
Article 215 states that every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself. A court of record is a court whose acts and proceedings are recorded and preserved for perpetual memory and testimony. Contempt of court is any act or omission that interferes with the administration of justice or lowers the dignity and authority of the court.
Article 216 states that every High Court shall consist of a Chief Justice and such other Judges as the President may from time to time deem it necessary to appoint. The High Court is the highest judicial authority in a state and exercises original and appellate jurisdiction over civil and criminal matters within its territorial limits. The number and composition of High Court judges may vary from state to state, depending on the caseload and population of the state.
Article 217 deals with the appointment and conditions of the office of a Judge of a High Court. It states that every Judge of a High Court shall be appointed by the President by warrant under his hand and seal on the recommendation of the National Judicial Appointments Commission, after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court. It also states that a Judge shall hold office until he attains the age of sixty-two years, or resigns his office by writing under his hand addressed to the President, or is removed from his office by the President in the manner provided for the removal of a Judge of the Supreme Court, or is appointed by the President to be a Judge of the Supreme Court or is transferred by the President to any other High Court within the territory of India. Further, it states that a person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India and has for at least ten years held a judicial office in the territory of India or has for at least ten years been an advocate of a High Court or of two or more such Courts in succession.
Article 218 states that the provisions of clauses (4) and (5) of Article 124 shall apply in relation to a High Court as they apply in relation to the Supreme Court with the substitution of references to the High Court for references to the Supreme Court. Article 124(4) and (5) deal with the removal of a Judge of the Supreme Court by the President on the ground of proven misbehaviour or incapacity 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. Article 124(5) also empowers Parliament to regulate by law the procedure for the presentation of an address and for the investigation and proof of the misbehaviour or incapacity of a Judge under clause (4). Thus, Article 218 implies that a Judge of a High Court can be removed by the President on the same grounds and in the same manner as a Judge of the Supreme Court.
Article 221 deals with the salaries and allowances of Judges of High Courts. It states that there shall be paid to the Judges of each High Court such salaries as may be determined by Parliament by law.
Article 222 states that the President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court. This article gives the power to the President to transfer a High Court Judge in the public interest or for better administration of justice. However, such transfer can only be done with the consent of the Judge concerned, and after giving him an opportunity to be heard. The transfer of a Judge does not affect his seniority, salary, allowances, pension or other conditions of service.
Article 223 deals with the Appointment of an acting Chief Justice. When the office of Chief Justice of a High Court is vacant or when any such Chief Justice is, by reason of absence or otherwise, unable to perform the duties of his office, the duties of the office shall be performed by such one of the other Judges of the Court as the President may appoint for the purpose.
Article 226 deals with the Power of High Courts to issue certain writs. It grants the High Courts the power to issue writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, to any person or authority, including the government, for the enforcement of any of the rights conferred by Part III (Fundamental Rights) and for any other purpose. It also extends the power of the High Courts to issue directions, orders or writs to any person or authority located within its territorial jurisdiction or outside, if the cause of action arises within its territorial jurisdiction. It further lays down the procedure for vacating interim orders made by the High Courts without furnishing copies of the petition and documents to the opposite party and giving them an opportunity of being heard. It also clarifies that the power conferred on the High Courts by this article shall not be in derogation of the power conferred on the Supreme Court by Article 32.
Article 32 is different from Article 226 in some respects. First, Article 32 is itself a fundamental right, whereas Article 226 is a constitutional provision. Second, Article 32 can only be invoked for the violation of fundamental rights, whereas Article 226 can be invoked for any other purpose as well. Third, Article 32 can only be exercised by the Supreme Court, whereas Article 226 can be exercised by any High Court within its territorial jurisdiction. Fourth, Article 32 is considered as the heart and soul of the Constitution by Dr B.R. Ambedkar, whereas Article 226 is considered a supplementary provision to Article 32.
Article 227 deals with the Power of superintendence over all courts by the High Court. It gives every High Court the power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. Courts or tribunals of Armed forces are excluded from this power.
Article 228 deals with the Transfer of certain cases to the High Court. It allows the High Court to withdraw a case pending in a court subordinate to it if it involves a substantial question of law as to the interpretation of this Constitution and the determination of which is necessary for the disposal of the case. The High Court can either dispose of the case itself or determine the said question of law and return the case to the subordinate court along with a copy of its judgment on such question. The subordinate court shall then proceed to dispose of the case in conformity with such judgment.
Article 229 deals with the Officers and servants and the expenses of High Courts. It empowers the High Court to make appointments of officers and servants of the Court by the Chief Justice of the Court or such other Judge or officer of the Court as he may direct. Administrative and all other expenses are charged to the Consolidated Funds of India.