CONSTITUTION OF INDIA, LAW AND ENGINEERING (KNC-501)

Unit-02

Module 2-Union Executive and State Executive: Powers of Indian Parliament

Functions of Rajya Sabha, Functions of Lok Sabha, Powers and Functions of the
President, Comparison of powers of Indian President with the United States, Powers
and Functions of the Prime Minister, Judiciary – The Independence of the Supreme
Court, Appointment of Judges, Judicial Review, Public Interest Litigation, Judicial
Activism, LokPal, Lok Ayukta, The Lokpal and Lok ayuktas Act 2013, State
Executives – Powers and Functions of the Governor, Powers and Functions of the
Chief Minister, Functions of State Cabinet, Functions of State Legislature, Functions
of High Court and Subordinate Courts
 INDIAN PARLIAMENT FUNCTIONS

 Part V, Chapter II of the constitution between Articles 79 and 123 deal with
the provisions relating to the Union Parliament.
 Article 79 provides that, ‘there shall be a Parliament which shall consist of the
President and two Houses to be known respectively as the Council of States
and the House of the People’.
 The President is not a member of the Parliament but he is a constituent part of
the Parliament.
 The President enjoys vast legislative powers.
 The constitution prescribes that the President must be qualified to be elected
as a member of Lok Sabha.

COMPOSITION OF RAJYA SABHA: ARTICLE 80

Raja Sabha is the upper House of the Indian Parliament. In contrast to the House of
Lords of the English Parliament, Rajya Sabha is modelled on the American Senate.
It is considered as a non-federal feature of the Indian Constitution. The Schedule IV
of the constitution provides for the allocation of seats in Rajya Sabha for the States.
Points to Remember
• Rajya Sabha is the Federal House.
• Rajya Sabha is chaired by Vice-President, a non-member of the House.
• While the members of the House have a term of six years, the Chairperson has only
a term of five years.
• Rajya Sabha does to have financial powers.
• Members are elected by proportional representation system.
• Approval of Rajya Sabha is enough in case an emergency proclamation is made
during when Lok Sabha is dissolved.Functions of Rajya Sabha.

Article 84 prescribes the qualification of members of Rajya Sabha. To be a member

of Rajya Sabha any person should:
(a) Be a citizen of India;
(b) Have completed the age of 30 years;
(c) Possess other qualification as prescribed by the law of the Parliament. Section
3 of the Representation of People’s Act, 1951, prescribes that to be a member
of Rajya Sabha any person should be a registered voter in any parliamentary
constituency in India.
 (d) Article 84 also provides that a person contesting in the election to Rajya Sabha
has to ‘subscribe an oath or affirmation according to the form set out for the
purpose in the Third Schedule’.

There is no need for the person to be a domicile of a State which he represents in the
Rajya Sabha because:
1. The constitution provides only for single citizenship.
2. Although a member who is not a domicile or native of particular State, he will
be representing the interests of the State which he represents in the House not
those of his State of origin.
Further, it may not be viable for any person to represent a State in the House unless
he had a practical knowledge about and standing in the State, so as to get elected
from the State.

Leader of the House Rajya Sabha

If the PM is a member of Rajya Sabha, he will be the Leader of the House.
• If he is not then he will nominate a minister who is a member of Rajya Sabha to be
the Leader of the House.
• Leader of the House occupies the first seat in the Chamber in first row at right the
side of the chair so that he is easily available to the Presiding Officer for consultation.
• Leader of the House is consulted by the Chairman in regard to arrangement of
business in the House.
• He ensures that all possible and reasonable facilities are made available for a
meaningful discussion on any matter.
• He is the spokesperson of the House in expressing sense of the House and
represents it on ceremonial or formal occasion.

Utility of Rajya Sabha

1. Given the immense diversity of India society the founding fathers decided to
have federal constitution with bicameral legislatures. Rajya Sabha is a federal
House representing the interest of the States in the union legislations and
policies.
2. Rajya Sabha provides opportunity for senior statesmen who are not willing or
capable to contest election to Lok Sabha to enter the Parliament so that their
talent and experience is not lost to the nation.
3. Rajya Sabha acts as a ‘revising House’ on the legislations enacted by the Lok
Sabha. Lok Sabha being a popular body may act with haste.
4. Rajya Sabha can potentially stop any attempt to drastically change the
constitution or law by delaying and revising. Hence, the House prevents any
undue encroachment on the constitution or a law.
 5. Although the constitution does not vest financial powers in the Rajya Sabha,
the system of departmental standing committee has been designed to make
use of the experience of the membership of Rajya Sabha.

Rajya Sabha—Special Powers

As a federal House, Rajya Sabha has special powers. The following are the special
powers:
1. By Article 249, Rajya Sabah has the power to pass a resolution by a majority
of not less than two thirds of members present and voting saying that it is
‘necessary or expedient in the national interest’ authorizing the Parliament to
enact a law on any matter given in the State List.
2. By Article 312, Rajya Sabha has the power to pass a resolution by a majority
of not less than two thirds of members present and voting and declares that it
is necessary or expedient in the national interest to create one or more All
India Services common to the union and the States, then the Parliament can
create new All India Services by law such.
3. Rajya Sabha has the powers to approve the Proclamation of Emergency—
national, constitutional or financial emergency, if at the time of Proclamation
of Emergency the Lok Sabha was dissolved.

COMPOSITION OF LOK SABHA

Lok Sabha is the lower House of the Indian Parliament. Members of the Lok Sabha
are elected directly by the people from the single member territorial constituencies.
The total sanctioned strength of the House is 552. Of the 552, 530 members are to
be elected by the people of the Sates and 20 members from the Union Territories.
The President nominates two members from the Anglo-Indian community if in the
opinion of the President the community is not adequately represented (Article 331).
At present Lok Sabha has 545 members—543 are elected and 2 nominated from
Anglo-Indian community.
The members of the House are elected directly by the people by a system of ‘First
Past the Post System’ by means of adult suffrage exercised in a secret ballot.
In this system the candidate who has secured the maximum number of votes out of
all the contestants in the election.

Vacation of Seats
Article 101 In the Parliament, a seat may fall vacant in case a member:
• Resigns by writing under his hand addressed to the Chairman or the Speaker or;
• Dies or;
• Disqualified on the grounds given in Article 102 or;
• Disqualified on the ground of defection or;
• Becomes a member of Houses—both Lok Sabha and legislature of a state or;
• Is absent for a period of sixty days without permission of the House.

Duration of the House:

The Lok Sabha shall have a term of five years from the date appointed for its first
meeting and no longer. However, the term of the Lok Sabha may be extended by one
year when a proclamation of national emergency is in operation. Similarly, the
House may be dissolved before the expiry of the term by the President.

SESSIONS OF THE PARLIAMENT

• Article 85 deals with the sessions of the Parliament.

• The President has the powers to summon and prorogue the sessions of the
Houses of the Parliament and dissolve the Lok Sabha.
• The constitution lays down the condition that not more than six months shall
expire between two sessions of the Parliament. Hence, in any year at least two
sessions of the Parliament must be held.
• It is a constitutional obligation on the President to summon the House(s) even
if the Council of Ministers did not advise him to summon the House.

Session
The meeting of the House of Parliament held period of time is known as a Session
of the House. A period from date of commencing the first sitting of the House is till
the date on which the President prorogues the House or in case of Lok Sabha
dissolves, the House is a Session of the Parliament.

A session of the House consists of several ‘sitting’ of the House. The meeting of the
House held to transact a business every day is known as a sitting of the House. Every
sitting close when the Presiding Officer of the House adjourns the House.

Usually, there are three sessions of the Parliament every year namely, the Budget
Session, Monsoon Session and Winter Session.

Quorum is the minimum number of members to be present for any siting of the
House to be conducted. According to Article 100, the quorum for any sitting is one-
tenth of the total membership of the House.
In case of state legislatures, Article 189 prescribes that the quorum shall be ten
members or one tenth of the total number of members of the House, whichever is
greater.

Lame duck Session: The last session of a dissolved Lok Sabha is known as a lame
duck session. The session is held after the general election to the Lok Sabha and so
in effect it is the first session after the general election.

The session is meant for bidding farewell to those members of the dissolved house
who have not contested the election or been elected again in the general election. No
major legislative business is transacted in the session as the House has no mandate
and the new House after the general election is yet to be constituted. Hence, the
session is known as ‘Lame duck session’ and the members are known as ‘Lame
ducks’.

Summoning of the House: Summoning of the House refers to the calling the
Houses for the session. It is the power of the President to be exercised with the aid
and advice of the Council of Ministers.

Proroguing the House: This is also the power of the President which exercise with
the aid and advice of the Council of Ministers. When prorogued the session comes
to an end. The President can prorogue the session of the House at any time.

Adjournment: Adjournment is the suspension of work in a sitting announced by the

Presiding officer. It may range from a few minutes to days together.

Adjournment Sine die: When the Presiding Officer adjourns the House without
fixing any time or any date for the next meeting it is called adjournment sine die.
Sine die means without setting a day (for the next meeting) or in other words where
the adjournment is for an indefinite period. Usually on the last day of the session the
House is adjourned sine die.

Dissolution: Dissolution ends the life of the Lok Sabha. A new Lok Sabha takes its
place after the general elections are held. Rajya Sabha being a permanent chamber
cannot be dissolved. Only the Lok Sabha is subjected to dissolution.

Powers of the Parliament

1. Article 16: Parliament has the power to prescribe the domicilty as a

requirement for any public employment under any State.
2. Article 246: The Parliament has the exclusive powers to make law on all the
subjects in the Union List of Schedules 7. The laws made by the Parliament
will have extra territorial jurisdiction that is the laws are valid even beyond
the territory of India.
3. Article 247: The Parliament has the power to establish additional courts for
the better administration of laws made by Parliament.
4. Article 248: The residuary powers are vested in the Parliament. Accordingly,
the Parliament has the powers to make law on any matters that is not listed in
any of the lists of the Schedule 7. The power includes the power to impose
tax.
5. Article 249: Parliament has the powers to enact law on the matters in State
List if Rajya Sabha passes a resolution.
6. Article 250: Parliament has unlimited powers to make law on any matter in
State List during a National Emergency.
7. Article 252: Parliament can enact law on a matter in State List if two or more
States request.
8. Article 253: Parliament has power to make any law for the whole or any part
of the territory of India for implementing any treaty, agreement or convention
with any other country or countries or any decision made at any international
conference, association or other body.
9. Article 262: The power to establish an Interstate River Water Dispute
Settlement Tribunal is vested in the Parliament.
10. Article 302: Parliament has the power to impose restriction on the trade,
commerce and intercourse throughout the territory of India in the public
interest.
11. Article 304: Parliament has the powers to make law for making provision in
order to deal with the scarcity of any good. Parliament may enact a law to give
preference or discriminate any State under such conditions of scarcity or
famine.
12. Article 307: Parliament has the power to establish an interstate commerce
commission by law
Privileges of Parliament
The privileges of the Parliament are grouped as the privileges of the individual
members and those of the House collectively. The privileges enjoyed by the
members individually are:
(a) Freedom of speech
(b) Freedom from being a witness
(c) Freedom from arrest
Freedom of Speech: The members of the Parliament or state legislature shall have
the right to freedom of speech in the House. A Member of Parliament or state
legislature shall not be held answerable in a court of law for whatever he speaks on
the floor of the House while participating in any proceeding of the House.
However, such freedom is subjected to the rules of procedures of the House. The
members shall not speak anything or in any manner which may adversely affect the
dignity or decorum of the House.
• Another restriction imposed on the freedom is that the members of Parliament
or state legislature shall not discuss anything on the conduct of a judge of
Supreme Court or high court except when the resolution for the removal of
the Judge is being considered.
• This restriction is imposed by Articles 121 and 211 respectively.
• This freedom of speech is different from the freedom of speech guaranteed to
the citizen by Article 19 (1) (a).
• While the freedom of speech as a fundamental right is restricted on the
grounds given in Article 19 (2), the freedom of the members of the legislature
is completely immunized from being restricted or questioned in a court of law.
Freedom from Being a Witness: A Member of Parliament or state legislature shall
be summoned to be a witness before a court of law without the permission of the
House, during when the Parliament or the state legislature is in session.
Freedom from Arrest: A Member of Parliament or state legislature shall not be
arrested during
1. The time when the House in which he is a member is meeting.
 2. The time when the Parliamentary committee in which he is a member is
meeting.
3. The period of forty days before and after the meeting of the House or its
committee. However, this immunity is only on the civil arrest and does
not apply to arrest in any criminal proceeding or preventive detention.
Privileges of the House: The Houses of Union Parliament and the state legislatures
as a whole enjoy the following: 1. House has the power to exclude the strangers
during any of its proceedings. 2. House has the power to permit or restrain the
publishing of any of its proceedings. Also, the House. 3. House has the exclusive
powers to make rules of procedure regulating the business in the House. Such rules
shall not be questioned in a court of law. House has the power to punish for the
breach of its privileges or its contempt.
President: Executive Head of the Government
The office of the President is modelled on the American and makes the President the
executive head of the State. Article 53 provides that ‘the executive power of the
Union shall be vested in the President’. It also makes the President the supreme
commander of the armed forces.

According to Article 53, ‘the President shall exercise the executive power either
directly or through officers’ subordinate to him, in accordance with the constitution’.
In this article the following expressions need to be noted:
(a) Executive power
(b) Exercise the powers in accordance with the constitution
(c) Exercise the powers directly
(d) Exercise through officers’ subordinate to him

Election to the Office of the President

The President is elected by the members of an electoral college consisting of the:

• Elected members of both Houses of Parliament.
• Elected members of the Legislative Assemblies of the States.

The nominated members of either House of Parliament or the Legislative

Assemblies of State are not eligible to be included in the Electoral College.

Therefore, the Prime Minister will not be eligible for voting in the election to the
office of the President, in case he happens to be a nominated Member of Parliament.
Thus, the President is elected indirectly and the citizens do not play any direct role
in the election.

To contest in the election a candidate must be proposed by at least 50 members and

must be seconded by at least another 50 members of the Electoral College. The
candidate is also required to pay a security deposit of `15000/.

The President is elected by the system of proportional representation and by means

of the single transferable vote, exercised in a secret ballot (Article 55).

The constitution mandates that as far as practicable ‘uniformity in the scale of

representation of the different States at the election’ must be maintained. Towards
maintaining this uniformity, the constitution provides for a special formula to
calculate the value of the votes of the members of the Parliament and the state
legislatures. The formula is based on the population of each State and the number of
elected Member of Parliament and of the Legislative Assembly of each State. The
value of the votes of the members of state legislatures and of Parliament is calculated
in the following manner:

Value of Votes of MLAs:

Value of Votes of MPs:

Single Transferable Vote System: Single transferable vote means that each voter
will have only one vote whatsoever number of candidates contesting in the election.
In the election of the President each elector marks only his preference and does not
vote for any one candidate alone. For instance, if there are four contestants in the
election, then the elector indicates four preferences in succession as his first, second,
third and fourth preference.
At the time of declaring results, the candidate who secures the quota of ‘first
preference’ votes as calculated above will be declared elected. In case no candidate
has secured the required quota of ‘first preference’ votes, then the candidate who
secured the least number of votes is excluded from the election.

Election to Office of President

Republic and Manner of Election of the President

Although the President of India is not elected by the people directly, India is still a
‘Republic’. The constitution prescribes certain conditions which injects the
republican character into the constitution and makes it a truly republican
constitution. The conditions are as follows:
1. The Electoral College to elect the President includes the elected members of the
State Legislative Assembles also.
2. A special formula has been prescribed to calculate the value of the votes of the
MLAs and MPs.
3. The President is elected by a system of proportional representation.
Eligibility for re-election
The President is eligible for re-election. The explanation in Article 58 excludes the
office of the President from being considered as an office of profit for the purpose
of election to the office of the President. Further, Article 57 expressly provides that
the President is eligible for re-election.

Oath of Office
Before entering upon the office, the President is administered an oath of office by
the Chief Justice of India in accordance with Article 60. In case the Chief Justice is
absent, the senior-most judge of the Supreme Court available shall administer the
oath.

According to Article 60, the President takes the oath to ‘preserve, protect and defend’
the constitution and ‘devote to the service and well-being of the people of India’. It
implies that the founding fathers of the constitution envisaged an important role to
the President.

He is the ‘friend, philosopher and guide’ to the Council of Ministers. He is not a

mere rubber stamp who merely endorses the decisions of the Council of Ministers.
He has to guide the Council of Ministers whenever they crossed the limits set by the
constitution. For instance, it is required of the President to direct the Prime Minster
to submit any matter for the consideration of the Council of Ministers, if in the matter
he was advised by a single minister and the matter was not considered by the Council
as a whole.

Powers of the President

According to Article 53, all the executive powers of the union are vested in the
President. The executive powers of the President are multidimensional in character
and it includes the powers of the nature of:
• Administrative powers
• Legislative powers
• Pardoning powers
• Military powers
• Diplomatic powers
• Miscellaneous powers
Although these powers are classified into many groups, they are executive powers
of the President which he shall exercise only with the aid and advice of the Council
of Ministers.
Prime Minister
The Prime Minister is the head of the Council of Ministers and is the leader of the
nation. He is the pivot of the government system. The office has been borrowed from
English parliamentary system.

The Prime Minister is appointed by the President. Usually the President appoints the
leader of the party that enjoys the majority support of the Lok Sabha as the PM.

However, in case of a hung Parliament in which no political party gains the required
majority the President has to apply his discretion. In such circumstances, the
President follows a convention. He invites the leader of the single largest party in
the Lok Sabha to form the government. When he fails to form the government,
President may call the leader of the alliance of parties formed before the election.

In case the alliance also fails to make, only then he appoints the leader of the post-
election alliance. This convention was evolved to avoid the ‘horse-trading’.

Functions and Duties of the PM

The PM preforms the following functions and the duties:

(i) He is the head of the Council of Ministers. As the head he presides over all the
meetings of the Council and the cabinet.
(ii) He is also the head of several cabinet committees, and it is his decision to
constitute the cabinet committees.
(iii) He is the only channel of communication between the Council of Ministers and
the President.

According to Article 78, the following are the duties of the PM:
1. To communicate to the President all decisions of the Council of Ministers
relating to the administration of the affairs of the union and proposals for
legislation. To furnish such information relating to the administration of the
affairs of the Union and proposals for legislation as the President may call for.
If the President so requires, to submit for the consideration of the Council of
Ministers any matter on which a decision has been taken by a minister but
which has not been considered by the Council.
2. He is the leader of the House in which he is attending, irrespective of whether
he is the member of that House. As the leader of the House he is responsible
for maintaining the decorum and discipline in the House, especially the
conduct of the ruling party members. He has to ensure that the members
 belonging to the opposition party and other independent members are given
with adequate opportunity to speak and ensure the ministers participate in the
discussions in the House responsibly. In the process, he needs to
wholeheartedly support the Speaker of Lok Sabha or the Chairman of Rajya
Sabha.
3. He is the ex-officio chairperson of the NITI Ayog, entrusted with the planned
development of the country.
Prime Minister: Role
 Head of the Council of Ministers
 Channel of communication between the Council of Ministers and the
President
 Leader of the House in which he is attending
 Ex-officio chairperson of the NITI Ayog

JUDICIARY AND JUDICIAL ACTIVISM

Indian Judiciary
The Constitution of India provides for a unified judiciary. Unlike the American
Federation, the Indian Constitution provides for a single judiciary common to the
union and the States. The Supreme Court remains at the apex of the judicial hierarchy
in India
THE SUPREME COURT OF INDIA

• The constitution provides for Supreme Court in the Part 4, Chapter IV

between Articles 124 and 147. Article 124 (1) establishes the Supreme Court
of India.
• The Supreme Court comprises the Chief Justice of India and other judges.
• The constitution sanctions nine judges to the Supreme Court and confers the
power to increase the number of judges to the Parliament
• Parliament may increase the number of judges from time to time.
• At present, after enactment of the Supreme Court (Number of Judges)
Amendment Act, the number of judges in the Supreme Court excluding of the
Chief Justice (CJ) is 33.

According to Article 130, the seat of the Supreme Court is in Delhi. However, the
court may sit in such other place or places, as the Chief Justice of India (CJI) may
from time to time, appoint, with the approval of the President.

Supreme Court: A Court of Record

Article 129 declares that the Supreme Court is a court of record. According to the
Law Dictionary, ‘A court of record is a court whose records are admitted to be
evidentiary value and are not questioned when they are produced before the court.’
The attributes of a court of record are that:
• Its judgments and proceedings are enrolled for perpetual memory and testimony.
Its record has evidentiary value and cannot be questioned when produced in a court.
It is conclusive evidence of what is contained in it.
• A court of record has the power to punish for contempt. Article 129 confers the
power to punish for its contempt. According to Contempt of Court Act, there are two
types of contempt namely civil contempt and criminal contempt.

Article 142 (2) provides that the Supreme Court has ‘all and every power to make
any order for the investigation or punishment of any contempt of itself, subjected to
the provisions of any law made by Parliament’.

Appointment of Judges

According to Article 124 (2), the power to appoint the judges of Supreme Court is
vested in the President. A judge of Supreme Court is appointed by the President by
a warrant under his hand and seal.
The President, in appointing the judges has to consult ‘such of the judges of the
Supreme Court and of the high courts in the States as the President may deem
necessary’.
There are two important issues in relation to the appointment of the judges of
Supreme Court namely:
1. Appointment of Chief Justice of India
2. Appointment of other judges.

Appointment of Chief Justice of India

The senior most judge of the Supreme Court by age is appointed as the Chief Justice
of India. This is followed as a convention since the commencement of the
constitution
• However, in 1956 the Law Commission in its report was critical of this
practice and recommended that seniority should not the criterion and ‘the
experience of the person as a judge, his administrative competence and merit’,
must be considered for the appointment of the Chief Justice. However, the
government rejected this recommendation and the practice of appointing the
senior most judge of Supreme Court as Chief Justice was continued.
• In 1973, the government accepted the recommendation retrospectively and
appointed Justice A. N. Ray as the Chief Justice, superseding three senior
judges. However, the government justified its stand stating that Article 124
confers discretion on the President to appoint the Chief Justice.
• In the first 22 years of the commencement of the constitution the President
had chosen not exercise the discretion.
• However, this reasoning was deplored by the constitutional experts on the
following grounds:

The principle of seniority followed in the appointment of the Chief Justice, was not
a mere practice but had been an established convention as it was followed for 22
years

• The Law Commission recommended for considering the merit of the judge
but the merit is not in the view of the executive. The supersession of the three
senior judges was not on the reason of their merit determined by the Law
Commission. They were superseded, for they had decided the Keshavananda
Bharti case against the will of the government.
• It was argued the social philosophy of the judges must be taken into account
while appointing the judges. This means the judges must be subscribing to the
view of the executive. This would be a kind of spoils system which would
amount to packing of judiciary.
The event of superseding the judges had been viewed as a blow on the independence
and impartiality of the judiciary. After the general elections 1977, the Janata Party
came to power. The Janata Party was against the supersession of the judges and once
coming to power the party revived the practice of appointing the senior most judge
of the Supreme Court as Chief Justice. Hence, the practice of appointing the senior
most judge as Chief Justice was restored.

Appointment of Other Judges

• Article 124 lays down that the President ‘shall consult the Judges of the
Supreme Court and of the high courts in the States as the President may deem
necessary’. In case of the appointment of a judge other than the Chief Justice
‘the Chief Justice shall always be consulted’ [Article 124(2)].
• The term ‘consult’ in Article 124 became the bone of contention between the
executive and the judiciary. In 1977, in the Sankalchand Seth case, the
Supreme Court ruled that the President has to consult the constitutional
functionaries, but the advice was not binding on the President. The President
can differ with the opinion of the constitutional functionaries and take
contrary view.
• Later, in 1982 in the S. P. Gupta versus Union of India case (Judges Transfer
Case), the Supreme Court unanimously agreed with the Sankalchand view and
ruled that the consultation is not binding on the President. It implies that the
power of appointing the judges is the sole prerogative of the Union
government.

In 1993, in the SCARA versus Union of India case, the Supreme Court overruled the
Sankalchand Seth case judgement. The court held that the Chief Justice must have
supremacy in matters of the appointment of judges.

In 1998, the President referred to the Supreme Court, nine issues relating to the
appointment of Supreme Court judges and transfer of high court Judges for its
opinion exercising his power under Article 143. The President sought clarification
on the consultation process relating to judge’s appointment and transfer. The court
ruled as follows:
1. The President has to consult the Chief Justice while appointing a judge of
Supreme Court and the consultation is binding.
2. The consultation process requires ‘consultation of plurality of judges’. The
sole opinion of the CJI does not constitute the ‘consultation’ process.
 3. Therefore, the Chief Justice of India should consult a collegium of four senior
most judges of the Supreme Court before giving his opinion. The CJI should
not send the recommendation to the government, even if two judges give an
adverse opinion.
4. ‘The collegium should make the decision in consensus and unless the opinion
of the collegium is in conformity with that of the Chief Justice of India, no
recommendation is to be made’.
5. Regarding the transfer of high court judges, in addition to the collegium of
four senior most judges, the Chief Justice of India was obliged to consult the
Chief Justice of the two high courts (one from which the judge was transferred
and the other receiving him).
6. In regard to the appointment of high court judges, the CJI was required to
consult only two seniors most judges of the apex court.
7. The transfer of judges of the high courts was judicially reviewable, only if the
CJI had recommended the transfers without consulting four senior most
judges of the apex court and two Chief Justices of the high courts concerned.
8. The requirement of consultation by the CJI with his colleagues does not
exclude consultation with those judges who are conversant with the affairs of
the high court.
9. Strong and cogent reasons must exist regarding a person’s name not being
recommended. Only positive reasons may be given. The views of the other
judges consulted by the CJI should be in writing and the same should be
conveyed to the government, along with the recommendation by the CJI
(Judgment dated 28 October 1998).

Removal of the Judge of Supreme Court

A judge of Supreme Court is removed by the process of impeachment. Article 124
and the Judges (Inquiry) Act, 1968, provide for the procedure:
1. A judge of Supreme Court can be removed only on the ground of ‘proved
misbehaviour’ or ‘incapacity’.
2. A motion to remove a judge, addressed to the President must be submitted to
the Speaker of Lok Sabha or Chairman of Rajya Sabha. The motion has to be
signed by at least 100 members of Lok Sabha or 50 members of Rajya Sabha.
3. On the receipt of the motion a three member committee comprised of two
judges of Supreme Court and one distinguished jurist is constituted to
investigate the charges.
4. If the report of the committee contains a finding that the judge is guilty of any
misbehaviour or suffers from any incapacity, then, the motion together with
the report of the committee, shall be taken up for consideration by the House
or the Houses of Parliament.
 5. If the motion is passed by a majority of total membership of the House and by
a majority of two thirds of the members of that House present and voting, then
the motion shall be presented to the President.

On receipt of the resolution, the President passes the order removing the judge

JURISDICTION OF THE SUPREME COURT

Under the Indian constitution, jurisdiction of the Supreme Court can be classified as
five types namely:
(i) Original jurisdiction
(ii) Appellate jurisdiction
(iii) Writ jurisdiction
(iv) Advisory jurisdiction
(v) Revisory jurisdiction

However, the jurisdiction of the Supreme Court can be enlarged in accordance with
Article 138. Article 138 provides that the Parliament can enlarge the jurisdiction of
the Supreme Court by conferring powers and jurisdiction with respect to the matters
in the Union List in Schedule.

Further, the Parliament can confer upon the Supreme Court, such powers and
jurisdiction in accordance with any international or bilateral agreements to which
India is signatory.

JUDICIAL REVIEW

The original and appellate jurisdiction of the Supreme Court between Articles 131
and 136 also provide for judicial review. The scheme of dividing the legislative
powers between the Parliament and the state legislatures is provided in Article 246.
It is the power of the judiciary to review and determine the validity of any law. If the
court is satisfied that the law conflicts with the constitution, the court has the powers
to declare the law as ultra vires the constitution and therefore, void. The power of
judicial review serves the following purposes:
• It seeks to protect the private rights (fundamental rights) of the individuals.
• It legitimizes the government actions.
• It helps in upholding the Rule of Law.
• It helps to ensure that provisions of the constitution are abided by.
• It prevents arbitrary us e of power or action.
• It ensures just standards of procedures
Public Interest Litigation

Sometimes, a Government or a Public Body violates the law, or indulges in

suppressing or exploiting the citizens. Any citizen affected by such violations may
directly complain to the Court. Such a letter of complaint is taken up as Public
Interest Litigation by the Court. Without charging any Court fees, the Court inquiries
into the complaint. A writ petition under Public Interest Litigation can be filed by
any public spirited individual or a social action group for the enforcement of the
constitutional or legal rights of some other person or group of persons
disadvantageously placed.

A writ petition under Public Interest Litigation is entertained by a High Court under
Article 226 of the Indian Constitution or in the case of breach of any fundamental
right by the Supreme Court under the Article 32 of the Indian Constitution. For filing
a case under Public Interest Litigation, it is not necessary to file a regular writ
petition where a case is filed through a lawyer. Sometimes, judges themselves have
taken initiative in the cases, depending upon the reports in the newspapers or
television

The field of Public Interest Litigation is quite vast. The following are the possible
areas where a Public Interest Litigation can be filed:
• Where a factory / industrial unit is causing air pollution and people nearly are
getting affected.
• Where, in an area / street, there are no street lights causing inconvenience to
the commuters.
• Where some ‘Banquet Hall’ plays a loud music, in nights causes noise
pollution.
• Where poor people are affected because of the State Government’s decisions
to impose heavy taxes.
• For abolishing child labour, and bonded labour.
• Where rights of working women are affected by sexual harassment.
• For maintaining roads, sewages, etc in good conditions.

For removal of big hoarding and signboards from the busy roads to avoid traffic
problems
Judicial Activism

Judicial activism means any action of the judiciary which is beyond its constitutional
mandate or expanding the jurisdiction of the courts or the courts acting ‘suo moto,’
taking up cases on its own without being moved by any aggrieved person.

The Golak Nath case and Kesavananda Bharti case are examples of judicial activism.
In Golak Nath case, the Supreme Court by a majority view ruled that the fundamental
rights are ‘immutable and beyond the reach of the amendatory process’.

In Kesavananda Bharati case, this judgment was overruled by a majority of seven

against six. The Supreme Court held that by Article 368 of the Constitution the
Parliament has powers amend to any part of the constitution including the Preamble
and the fundamental rights. But the power cannot be exercised in the manner to alter
the ‘basic structure or framework of the constitution’. The court propounded the
‘Doctrine of Basic Features’, which was never discussed or envisaged by the
founding fathers of the constitution

The Lokpal and Lokayuktas Act 2013

The Lokpal and Lokayuktas Act, 2013, commonly known as The Lokpal Act, is
an anti-corruption Act of Indian Parliament in India which "seeks to provide for the
establishment of the institution of Lokpal to inquire into allegations of corruption
against certain important public functionaries including the Prime Minister, cabinet
ministers, members of parliament, Group A officials of the Central Government and
for matters connecting them".

The Bill was tabled in the Lok Sabha on 22 December 2011 and was passed by the
House on 27 December as The Lokpal and Lokayuktas Bill, 2011. It was
subsequently tabled in the Rajya Sabha on 29 December. After
a marathon debate that stretched until midnight of the following day, the vote failed
to take place for lack of time. On 21 May 2012, it was referred to a Select Committee
of the Rajya Sabha for consideration. It was passed in the Rajya Sabha on 17
December 2013 after making certain amendments to the earlier Bill and in the Lok
Sabha the next day. It received assent from President Pranab Mukherjee on 1
January 2014 and came into force from 16 January.
 STATE EXECUTIVE

The State Executive consists of the Governor, who is the head of the State, and the
Council of Ministers with the Chief Minister at its head.
The pattern of the State Executive is very similar to that of the Central Executive
which is based on the fundamental principle of accountability of the Executive to
the Legislature. Like the Centre, the States also have parliamentary form of
government. The constitutional provisions dealing with the State Executive are more
or less word to word similar to the constitutional provisions dealing with the Central
Executive except for some differences arising out of the fact while the Constitution
confers some discretion on the State Governor, it confers none on the President.

Arts. 153 to 167 and 213 deal with the composition and powers of the State
Executive.

ADMISSION TO THE EXECUTIVE ORGANS:

GOVERNOR

(a) SIGNIFICANCE OF THE GOVERNOR’S OFFICE:

The Governor of a State plays a multifaceted role. He is a vital link between the
Centre and the State. It is his duty to keep the Centre informed of the affairs of
the State. This helps the Centre to discharge its constitutional functions and
responsibilities towards the State.

The Governor is the constitutional head of the State. He appoints the Chief
Minister and other Ministers and discharges several important functions in
relation to the State Legislature. The Governor assures continuity in the State
Administration, as having a fixed tenure, he stays in office while the Chief
Minister may come and go from time to time.

The Governor acts as the agent of the Centre when a proclamation of breakdown
of constitutional machinery in the State is issued under Art. 356. The State
Governor is thus a key functionary in the system envisaged by the Constitution.

(b) APPOINTMENT OF GOVERNOR:

Each State has a Governor, but two or more States may have a common
Governor [Art. 153]. The Governor is formally appointed by the President [Art.
155]. The President appoints the State Governor on the advice of the Prime
Minister with whom, therefore, the effective power lies in this regard.
The Constitution gives a carte blanche to the Centre in the matter of appointment of
a State Governor. Under Art. 155, the ultimate responsibility to appoint the Governor
rests with the Central Government. The Governor has a dual capacity—he is the
Head of the State as well as the representative of the Centre in the State and he works
as a channel of communication and contact between the State and the Centre. It is
felt that with a view to ensuring the smooth functioning of the constitutional
machinery in the State, it would be best to consult the State Chief Minister while
appointing the Governor, and a convention has thus grown accordingly.

A citizen of India who has completed the age of 35 years is eligible to be appointed
as the Governor [Art. 157]. Before entering upon his office, a Governor has to make
and subscribe, in the presence of the Chief Justice of the State High Court, an oath
or affirmation in the prescribed form. In the absence of the Chief Justice, the oath
may be taken before the senior-most Judge of the High Court available at the time
[Art. 159].

The Governor cannot be a member of a House of Parliament, or of the State

Legislature, and if a member of a House, at the time of his appointment as the
Governor, he has to vacate his seat in that House on the date on which he enters upon
his office as Governor [Art. 158(1)].

(c) GOVERNOR’S PRIVILEGES:

The Governor enjoys the same privileges as the President does under Art. 361 and
he stands, in this respect, on the same footing as the President.

Even where Governor’s bona fides are questioned in the matter of exercise of his
discretionary powers of appointment and dismissal of the Chief Minister, he cannot
be called upon to enter his defence. According to the Bombay High Court, “the
Governor while taking decisions in his sole discretion, enjoys immunity under
Article 361…” The Governor holds his office during the pleasure of the President
under Art. 156.

(d) TENURE OF GOVERNOR:

The basic rule is that a Governor holds his office during the pleasure of the President
[Art. 156(1)], i.e., as long as the Central Executive wants him in that office.
Accordingly, the Central Executive can remove the Governor on any ground, as for
example, bribery, corruption, violation of the Constitution, etc.
Subject to this overall condition, a Governor holds office for five years. He, however,
continues to hold office even after the lapse of his term till his successor enters upon
his office [Art. 156(2)]. Thus, a person once appointed a Governor continues to hold
that office till his successor enters upon his office.

The Governor may resign at any time by writing to the President [Art. 156(3)]. In a
contingency for which the Constitution makes no provision, such as death of the
Governor, the President may make such provision as he thinks fit for discharge of
the functions of the Governor of a State [Art. 160]. Thus, the Chief Justice of the
High Court can be appointed temporarily to discharge the functions of the Governor
of the State.
COUNCIL OF MINISTERS

On lines similar to the Centre, each State has a Council of Ministers, with the Chief
Minister at its head. The provision regarding the Council of Ministers is mandatory
and the Governor cannot dispense with this body at any time [Art. 163(1)]. This
proposition has now been reiterated by the Supreme Court which has held that the
Council of Ministers continues to stay in office even when the Legislature is
dissolved by the Governor.

The function of the Council of Ministers is “to aid and advise the Governor in the
exercise of his functions except in so far as he is by or under this Constitution
required to exercise his functions or any of them in his discretion [Art. 163(1)]. The
phrase “by or under” the Constitution means that the need to exercise discretionary
power may arise from any express provision of the Constitution or by necessary
implication.

It has been judicially held that the Council of Ministers comes into existence to aid
and advice the Governor as envisaged by Art. 163(1) as soon as the Chief Minister
is appointed and sworn in by the Governor.

APPOINTMENT OF CHIEF MINISTER AND OTHER MINISTERS:

Ordinarily, a Minister should be a member of the State Legislature. A basic feature

of the parliamentary system of government is that all Ministers ought to be members
of a House of State Legislature. This ensures accountability of the Council of
Ministers to the Legislature.40 However, a non-member may also be appointed as a
Minister, but he would cease to be a Minister if he does not become a member of the
State Legislature within six months [Art. 164(4)].
A person who is not a member of any House may even be appointed as the Chief
Minister as the term ‘Minister’ in Art. 164(4) covers the “Chief Minister” as well.
Therefore, there have been cases when non-members have been appointed as Chief
Ministers. For example, Kamraj Nadar was appointed as the Chief Minister of
Madras in 1954 although he was not a member of the State Legislature.

A few judicial pronouncements on the scope of Art. 164(4) may be taken note of
here.

Shri T.N. Singh who was not a member of either House of the State Legislature was
appointed the Chief Minister of Uttar Pradesh. The High Court rejected the challenge
to his appointment in view of Art. 164(4) of the Constitution and the Supreme Court
upheld the High Court. A non-member can be appointed as Chief Minister for a
period of six months.

(b) OATH OF OFFICE AND MINISTERS:

Before a Minister enters upon his office, the Governor administers to him the
prescribed oaths of office and secrecy [Art. 164(3)]. What happens if a Minister
breaks the oath taken by him at the time of his induction into the office of the
Minister?

A Minister (Mr. Balakrishna Pillai) in the Kerala Government was reported to have
said at a public meeting that people should resort to terrorism and wage a war against
the Central Government on the Punjab model to achieve their objectives. A citizen
of India filed a petition in the High Court for issue of quo warranto61 preventing the
Minister from exercising the authority of his office on the ground that his speech
amounted to a breach of the oath taken by him at the time of assuming office as a
Minister and he thus forfeited his right to continue as a Minister. The Minister
resigned his office. The Court however dismissed the petition.

(c) INTERACTION BETWEEN THE EXECUTIVE AND THE

LEGISLATURE:

The pattern of interaction between the Executive and the Legislature in a State is
similar to that existing at the Centre. A few broad features of this may be
recapitulated here.
The Ministers are members of the Legislature and responsible to the Legislative
Assembly. They stay in office so long as they are able to command the confidence
of the majority in that House.
The Legislature has ample opportunities of criticizing and shaping the policies of the
Executive. It is a recurring process and opportunity is taken in this respect inter alia
at the time of legislation, discussion of the Governor’s speech and his messages and
consideration of demands.

Further, the Legislature is entitled to fix the emoluments of the Ministers. The
ordinance-making power of the Executive is also subject to legislative control.

As at the Centre so in the States, the Executive also has ample opportunities to
control the Legislature. It summons and prorogues the Houses and may dissolve the
Assembly. It initiates practically all legislation and enjoys a veto power over
legislation. It plays a leading part in discussion on financial matters in the Legislature
and initiates all demands.

GOVERNOR’S DISCRETIONARY POWERS

The concept of the Governor acting in his discretion or exercising independent

judgment is not alien to the Constitution. The normal rule is that the Governor acts
on the aid and advice of the Council of Ministers and not independently or contrary
to it. But there are exceptions under which the Governor can act in his own
discretion. Although some of the exceptions were pointed out, they are not
exhaustive.
(1) The Governor is required to discharge certain functions in his “discretion” “by
or under the Constitution”. This envisages that the Governor’s discretionary powers
need not be express but may be necessarily implied.
(2) In the discharge of these functions, he is not required to seek the “aid and advice”
of his Council of Ministers.
(3) Whether a function falls within his “discretion” or not, it is the Governor who
decides the matter in his “discretion”.
(4) The Governor’s decision under (3) above is final. He is the sole and final judge
whether any function is to be exercised in his discretion or on the advice of his
Council of Ministers.
(5) The validity of anything done by the Governor is not to be called in question on
the ground that “he ought or ought not to have acted in his discretion”

Under the Constitution, there are several categories of action which the Governor
may take in his discretion, viz. :
(1) Art. 200 requires him to reserve for the President’s consideration any Bill which
in his opinion derogates from the powers of the High Court;
(2) To reserve any other Bill [Art. 200];
(3) To appoint the Chief Minister of the State;
(4) Governor’s report under Art. 356;
(5) Governor’s responsibility for certain regions such as the Tribal Areas in Assam
and responsibilities placed on the Governor’s shoulders under Arts. 371A, 371C,
371E, 371H.

DISSOLVING THE HOUSE

Another bone of contention has been the question of dissolving the House. He is to
take a decision to dissolve or not to dissolve the House on a consideration of the
totality of circumstances. He may refuse to accept the advice of the Ministry which
has lost the majority support if in his view an alternative stable government can be
formed. The Governor may, however, be bound to accept the advice for dissolution
by a Ministry having a majority support.

The discretionary element in the matter of dissolution can be reduced if, as suggested
earlier, a convention is adopted to grant dissolution to a defeated Chief Minister if
he had a majority earlier. There is however great reluctance in the public to hold
frequent elections as holding of an election in India is a very costly proposition.
Therefore, dissolution of the Assembly ought to be resorted to only as a last resort.
This enhances the discretion of the Governor instead of reducing it. This also
encourages the cult of defection of members from one party to another.

FUNCTIONS AND POWERS OF THE EXECUTIVE

(i) JUDICIAL POWER:

The Constitution confers certain powers on the State Government which may be
characterized as ‘judicial’ in nature.

The State Executive has power to appoint judges to the subordinate Courts in the
State [Art. 233-237]. Besides, the question whether a member of the State
Legislature has become subject to a disqualification or not is formally decided by
the Governor [Art. 192].

POWER TO GRANT PARDON The Governor is empowered to grant pardons,

reprieves, respites or remissions of punishment or to suspend, remit or commute the
sentence of any person convicted of any offence against any law relating to a matter
to which the executive power of the State extends [Art. 161].
(ii) LEGISLATIVE POWER:

(a) PARTICIPATION IN THE LEGISLATIVE PROCESS

The Governor has to signify his assent to a Bill passed by the State Legislature
before it can assume legal sanctity or reserve it for Presidential assent. Most of the
bills are drafted by government departments and are presented to, and piloted
through, the Legislature by the Ministers. No bill can ever be passed by the
Legislature without government sponsorship and support because the government
has majority in the Legislative Assembly.

(b) RULE MAKING:

Several provisions of the Constitution confer rule-making powers on the Governor.
He can make rules regarding:—
(1) Authentication of orders and other instruments;
(2) Conditions of service of the members of the State Public Service Commission as
well as civil servants;
(3) Convenient transaction of Government business;
(4) Procedure in respect of communications between the Houses of State
Legislature;
(5) Recruitment of officers, etc., for a High Court,
(6) Recruitment of secretarial staff of the Legislature.

(c) ORDINANCE-MAKING POWER:

The State Executive has ordinance-making power similar to that enjoyed by the
Central Executive.

According to Art. 213(1), which is in pari materia to Art. 123, which has already
been discussed earlier, the State Governor may promulgate such ordinances as the
circumstances appear to him to require when—(1) the State Legislative Assembly is
not in session; or if the State has two Houses, when one of the Houses is not in
session; and (2) the Governor is satisfied that circumstances exist which render it
necessary for him to take immediate action.

According to the provision to Art. 213(1), the Governor cannot, without instructions
from the President, promulgate any ordinance if:—(a) a Bill to that effect would,
under the Constitution, have required the previous sanction of the President for its
introduction into the State Legislature; or, (b) if the Governor would have deemed it
necessary to reserve a Bill to that effect for the President’s consideration; or, (c), an
Act of the State Legislature to that effect would have been invalid under the
Constitution without receiving the President’s assent.

STATE JUDICIARY
The primary duty of the Judiciary is to uphold the Constitution and the Laws without
fear or favour, without being biased by political ideology or economic theory. The
State Judiciary consists of a High Court and a system of subordinate courts. The
High Court is at the apex of the State judicial system. The High Court’s come below
the Supreme Court in India’s judicial hierarchy.

The institution of the High Courts is fairly old as it dates back to 1862 when under
the Indian High Courts Act, 1861, High Courts were established at Calcutta, Bombay
and Madras. In course of time, other High Courts also came to be established.4 The
Constitution builds the structure of the High Courts, on the pre-existing foundations.
At present, each State in India has a High Court [Art. 214]. Parliament may,
however, establish by law a common High Court for two or more States [Art 231(1)].

The High Courts enjoy civil as well as criminal, ordinary as well as extraordinary,
and general as well as special jurisdiction. The High Courts enjoy an original
jurisdiction in respect of testamentary, matrimonial, company and guardianship
matters.

COMPOSITION OF THE HIGH COURT

(a) STRENGTH OF A HIGH COURT

A High Court consists of the Chief Justice and such other Judges as the President
may appoint from time to time [Art. 216]. In this way, the number of Judges in a
High Court is flexible and it can be settled by the Central Executive from time to
time keeping in view the amount of work before a High Court.

The question of justifiability of the adequacy of the Judge-strength in a High Court

has been considered by the Supreme Court in Supreme Court Advocates on-Record
Association v. Union of India. The Court has emphasized that it is necessary to make
a periodical review of the Judge strength of every High Court with reference to the
felt need for disposal of cases, taking into account the backlog of cases and the
expected future filing. This is essential to ensure speedy justice. Art. 216 casts a duty
on the Central Executive to periodically assess the Judge strength of each High
Court. Art. 216 is to be interpreted not in isolation, but as a part of the entire
constitutional scheme, conforming to the constitutional purpose and its ethos.
 (b) APPOINTMENT OF JUDGES
The High Court Judges are appointed by the President after consulting the Chief
Justice of India, the Governor of the State concerned and, in case of appointment of
a Judge other than the Chief Justice, the Chief Justice of the High Court to which the
appointment is to be made [Art. 217(1)].

The Central Executive and the State Executive provide the political input in the
process of selection of the Judges. Since the inauguration of the Constitution, the
question has been considered by some authorities: how to ensure that the Judges are
selected on non-political considerations? It is thought that it is necessary for securing
the independence and objectivity of the Judiciary that Judges be selected on merit
and not on political considerations.

The matter was considered by the Law Commission as early as 1958. In its XIV
Report, the Commission opined that the High Court Judges were not always
appointed on merit because of the influence of the State Executive. Accordingly, the
Commission suggested that the Chief Justice of the High Court should have a bigger
role to play in the matter of appointment of the Judges; that it should be only on his
recommendation that a Judge be appointed, and also that concurrence, and not only
consultation, of the Chief Justice of India be needed for this purpose.

The Government of India did not accept this recommendation. On the other hand, it
stated that, as a matter of course, the High Court Judges had been appointed with the
concurrence of the Chief Justice of India.

QUALIFICATIONS FOR A HIGH COURT JUDGE

A person to be appointed as a High Court Judge should be a citizen of India; he must

have held a judicial office in India, or been an advocate of a High Court, for at least
ten years [Art. 217(2)]. Unlike the Supreme Court, the Constitution makes no
provision for appointment of a jurist as a High Court Judge.

Legal History was made in India when in Kumar Padma Prasad v. Union of India,
for the first time, the Supreme Court quashed the appointment of Shri K.N.
Srivastava, Secretary (Law and Justice), Mizoram Government, as a High Court
Judge on the ground that he was not qualified to be appointed as such.

The appointment of Shri Srivastava as a High Court Judge was challenged through
a writ petition moved in the Gauhati High Court by a practicing advocate and the
High Court granted a stay on the warrant of appointment. Shri Srivastava then moved
the Supreme Court against the High Court order and moved a transfer petition of the
writ petition from the High Court to the Supreme Court.

Referring to Art. 217(2)(a), the Court pointed out that the question was whether Shri
Srivastava had held a judicial office for 10 years. The term ‘judicial office’ has not
been defined in the Constitution but, according to the Court, holder of ‘judicial
office’ under Art. 217(2)(a) means a person who exercises only judicial functions,
determines causes inter partes and renders decisions in a judicial capacity. He must
belong to the judicial service which as a class is free from executive control and is
disciplined to hold the dignity, integrity and independence of judiciary.

The Court made it clear that ordinarily the domain in such matters lay wholly with
the constitutional authorities but in exceptional circumstances like the present, where
the incumbent did not fulfil the qualification prescribed for the office, it became the
Court’s duty to see that no ineligible or unqualified person was appointed to a high
constitutional and august office of a High Court Judge.

TRANSFER OF JUDGES

The question of transfer of a Judge from one High Court to another has raised
controversies from time to time. During the emergency of 1975, 16 High Court
Judges were transferred from one High Court to another. It was widely believed that
the Government did so as a punitive measure to punish those Judges who had dared
to give judgments against it.

Article 222(1) empowers the President to transfer a Judge from one High Court to
another after consulting the Chief Justice of India. Under Art. 222(2), the transferred
Judge is entitled to receive, in addition to his salary, such compensatory allowance
as may be determined by Parliament by law, and until so determined, as the President
may fix by order.

As the phraseology of Art. 222(1) stands, neither the consent of the Judge is
necessary to his transfer nor is the opinion of the Chief Justice binding on the
Government. A Judge of the Gujarat High Court was transferred to the Andhra
Pradesh High Court without his consent. He challenged his transfer through a writ
petition in the High Court and the matter came ultimately before the Supreme Court
in India v. Sankalchand Himatlal Sheth.
 JURISDICTION AND POWERS

(i) COURT OF RECORD

A High Court is a Court of record and has all the powers of such a Court including
the powers to punish for its contempt [Art. 215]. The power is similar in content,
scope and nature to the corresponding power of the Supreme Court.

As a Court of record, the High Court is entitled to preserve its original record in
perpetuity. Besides, as a Court of record the High Court has twofold powers:
(i) it has power to determine the question about its own jurisdiction; and
(ii) it has inherent power to punish for its contempt summarily.

(ii). GENERAL JURISDICTION

The Constitution does not contain detailed provisions to define the jurisdiction of
the High Courts. It merely declares that their jurisdiction, the law administered by
them, the respective powers of their Judges in relation to the administration of justice
by the courts, and their rule-making power, all are to be the same as were enjoyed
by them immediately before the commencement of the Constitution [Art. 225].

The Constitution thus maintains the status quo existing on January 25, 1950, in
respect of the jurisdiction and powers of the High Courts. The reason for this is that
the High Courts are institutions of respectable antiquity that these courts had been
in existence much before the advent of the present Constitution and they are not new
bodies created for the first time by the Constitution. The status quo in respect of the
High Courts is subject to the provisions of the Constitution and any law made by the
appropriate Legislature in pursuance of its powers under the Constitution [Art. 225].

(iii) CONSTITUTIONAL QUESTION:

Article 228 provides that if the High Court is satisfied that a case pending in a
subordinate Court involves a substantial question of law regarding the interpretation
of the Constitution, which it is necessary to determine to dispose of the case, the
High Court shall withdraw the case to itself. It may then dispose of the whole case
itself, or may determine only the constitutional law point and return the case to the
subordinate Court for disposal in conformity with the High Court’s judgment on the
constitutional point. The High Court will take action under Art. 228 only if the case
cannot be disposed of without determining the constitutional question involved. This
provision enables the High Court to determine the constitutional question at the
earliest opportunity. The language of Art. 228 is such that once the conditions
mentioned therein are satisfied, the High Court has no option but to withdraw the
case to itself for disposal.
 (iv) POWER OF SUPERINTENDENCE
SALIENT FEATURES OF ART. 227 According to Art. 227(1), every High Court
has the power of superintendence over all courts and tribunals within its territorial
jurisdiction except those which are constituted by or under a law relating to the
armed forces [Art. 227(4)].

This power of superintendence and control over all Subordinate Courts and tribunals
is both of administrative and judicial nature, and, such power could be exercised suo
motu. However the power of superintendence does not imply that the High Court
can influence the subordinate judiciary to pass any order or judgment in a particular
manner. In Waryam Singh v. Amarnath, a Constitution Bench of the Supreme Court
traced the High Court’s history of the power of Superintendence now elevated in the
Constitution as Art. 227. The court pointed out that the material part of Art. 227
substantially reproduces the provisions of S.107 of the Government of India Act,
1917. The power of the High Court was not merely ‘administrative superintendence’
apart from and independently of the provisions of other laws conferring revisional
jurisdiction on the High Court. It was noticed that S. 107 was reproduced as S. 244
in the Government of India Act, 1935 which, in turn, was reproduced with some
modification as Art. 227 of the Constitution.

WRIT JURISDICTION: ART. 226

NATURE OF THE WRIT JURISDICTION

A very significant aspect of the Indian Constitution is the jurisdiction it confers on

the High Courts to issue writs. The writs have been among the great safeguards
provided by the British Judicial System for upholding the rights and liberties of the
people. It was an act of great wisdom and foresight on the part of the Constitution-
makers to introduce the writ system in India, and, thus, constitute the High Courts
into guardians of the people’s legal rights.

In the modern era of welfare state, when there is governmental action on a vast scale,
a procedure to obtain speedy and effective redress against an illegal exercise of
power by the Executive is extremely desirable. Through writs, the High Courts are
able to control, to some extent, the administrative authorities in the modern
administrative age. The writ system provides an expeditious and less expensive
remedy than any other remedy available through the normal Court-process.
The power of the High Court to entertain a petition under Art. 226 is an original
power whereas the power of the Supreme Court while entertaining an appeal under
Art. 136 is an appellate power.

TERRITORIAL JURISDICTION TO ISSUE WRITS

A High Court exercises its writ jurisdiction throughout the territories in relation to
which it exercises its jurisdiction. The High Court can issue a writ—
(1) To a person or authority having its location or residence within the Court’s
territorial jurisdiction; or,
(2) If the cause of action either wholly or partly arises within the High Court’s
territorial jurisdiction.

Although in view of Section 141 CPC the provisions thereof would not apply to writ
proceedings, the phraseology used in Section 20(c) CPC and Article 226(2) being in
pari materia, the decisions of the Supreme Court rendered on interpretation of
Section 20(c) CPC shall apply to the writ proceedings also.

WRIT JURISDICTION NOT APPELLATE BUT SUPERVISORY IN

NATURE

The Supreme Court has emphasized time and again that the power of the High Court
under Art. 226 is supervisory in nature and is not akin to appellate power. The main
purpose of this power is to enable the High Court to keep the various authorities
within the bounds of their powers, but not to sit as an appellate body over these
authorities.

While exercising power under Art. 226, the High Court cannot go into the
correctness or merits of the decision taken by the concerned authority but a review
of the manner in which the decision is made; it only ensures that the authority arrives
at its decision according to law and in accordance with the principles of natural
justice wherever applicable.

PUBLIC INTEREST LITIGATION

The courts have even sanctioned ‘public interest’ litigation where a question of
public interest may be espoused through a writ petition by someone even though he
may not be directly injured or affected by it, or may have any personal interest in the
matter. The petitioner comes to the Court to espouse a public cause. The expression
“public interest litigation” means a legal action initiated in a Court for enforcement
of public interest.
As the Supreme Court observed in an earlier case anticipating the future
development: “Where a wrong against community interest is done, ‘no locus standi’
will not always be a plea to non-suit an interested public body chasing the wrong
doer in the Court..... ‘Locus standi’ has a larger ambit in current legal semantics than
the accepted, individualistic jurisprudence of old.”

Public Interest Litigation relates to the nature of the proceedings and has no inbuilt
implications as to the forum competent to deal with such litigation. In practice,
however, PIL is, almost invariably, filed in the High Court under Article 226 or the
Supreme Court under Article 32. When the complainant invokes the jurisdiction of
the High Court or the Supreme Court under Articles 226 and 32 respectively, many
of the principles applied by the Courts while reviewing under Article 226 or Article
32 are applied.
For example, the principle that questions concerning title to property where there is
a factual dispute, the High Court or the Supreme Court will not take upon itself the
burden of resolving such dispute; and more so when a civil suit relating to the same
dispute and same property was pending.

THE WRITS
(i) HABEAS CORPUS
The writ of habeas corpus is used to secure release of a person who has been detained
unlawfully or without legal justification. The great value of the writ is that it enables
an immediate determination of a person’s right to freedom. Detention may be
unlawful if inter alia it is not in accordance with law, or the procedure established
by law has not been strictly followed in detaining a person, or there is no valid law
to authorize detention, or the law is invalid because it infringes a Fundamental Right,
or the Legislature enacting it exceeds its limits.

Detention should not contravene Art. 22, as for example, a person who is not
produced before a magistrate within 24 hours of his detention is entitled to be
released. The power of detention vested in an authority, if exceeded, abused or
exercised mala fide makes the detention unlawful.

Article 21 of the Constitution having declared that no person shall be deprived of

life and liberty except in accordance with the procedure established by law, a
machinery was needed to examine the question of illegal detention with utmost
promptitude. The writ of habeas corpus is such a device. The writ has been described
as a writ of right which is grantable ex debito justitiae. Though a writ of right, it is
not a writ of course. The applicant must show a prima facie case of unlawful
detention.

QUO WARRANTO The writ lies only in respect of a public office of a substantive
character. The writ does not therefore lie to question the appointment of a college
principal as it is not a public office.

The writ calls upon the holder of a public office to show to the Court under what
authority he is holding that office. The Court may oust a person from an office to
which he is not entitled. It is issued against the usurper of an office and the
appointing authority is not a party. The Court can thus control election or
appointment to an office against law, and protect a citizen from being deprived of a
public office to which he may be entitled.

MANDAMUS
Mandamus is a command issued by a Court commanding a public authority to
perform a public duty belonging to its office. Mandamus is issued to enforce
performance of public duties by authorities of all kinds. For example, when a tribunal
omits to decide a matter which it is bound to decide, it can be commanded to
determine the questions which it has left undecided. Although the Court ordinarily
is reluctant to assume the functions of the statutory functionaries it will step in by
mandamus when the State fails to perform its duty. It shall also step in when the
discretion is exercised but the same has not been done legally and validly. And even
though existence of an alternative remedy is no bar to exercise jurisdiction under
Art. 226, it will not ordinarily do so unless it is found that an order has been passed
wholly without jurisdiction or contradictory to the constitutional or statutory
provisions or where an order has been passed without complying with the principles
of natural justice.

SUBORDINATE JUDICIARY
In each State there is a system of subordinate courts below the High Court. The
Constitution makes a few provisions in Articles 233 to 237 to regulate the
organization of these courts and to ensure independence of the subordinate judges.

The Supreme Court has emphasized again and again on the maintenance of
independence and integrity of the subordinate judiciary which is closest to the
people. Accordingly, the Court has through its various decisions promoted the
independence of these courts from executive control and, to this effect, has expanded
the control of the High Courts over the subordinate judiciary, so as to strengthen the
independence of the subordinate courts from executive control.
APPOINTMENT OF DISTRICT JUDGES
Under Art. 233 (1), appointment, posting and promotion of district judges in a State
are made by the Governor in consultation with the High Court. Under Art. 233(2), a
person not already in the ‘service of the State’ is eligible to be appointed as a district
judge only if— (i) he has been for not less than seven years an advocate or a pleader,
and (ii) is recommended by the High Court for such appointment. From the tenor of
Art. 233, it appears that there are two sources of recruitment of district judges, viz.;
(i) service of the Union or the State;
(ii) Members of the Bar.