The Constitution of 1950: What Changed for the Courts, and What Did Not

Read that table beside the Module II table of sections of the Act of 1935 against articles of the Constitution, and the point of this book becomes visible. The court a student will practise in was made in 1862, given a constitutional footing in 1935 and re-founded in 1950, and each step preserved what the one before had built.

The one deliberate reversal

There is one place where the Constitution goes the other way, and it is worth naming here because two chapters later depend on it.

Article 50 provides that "The State shall take steps to separate the judiciary from the executive in the public services of the State."

That is a Directive Principle, not a right, and it is the Constitution's answer to the arrangement Module I describes: the Collector who was also the judge, and the Governor-General in Council who was also the Sadar Diwani Adalat. It is the constitutional endorsement of Cornwallis's judgment of 1793, made a hundred and fifty-seven years later and put among the directives rather than among the rights.

What "integrated" means, and what it does not

Indian textbooks describe the judiciary as integrated or unified, and the word needs care.

It means that there is a single hierarchy: subordinate courts, then the High Court of the State, then the Supreme Court of India; that the same courts administer both Union law and State law; and that the law declared by the Supreme Court binds every court in the country.

It does not mean that the courts are administered by one authority. The High Courts are constituted for States, their judges are appointed under article 217, and the control over the district judiciary is vested by article 235 in the High Court of the State, not in the Supreme Court.

The contrast usually drawn is with the United States, where federal courts and State courts are separate hierarchies applying different bodies of law with a limited connection at the top. India took the opposite course, and it took it because the country it inherited already had a single hierarchy of courts administering both provincial and central law, which is the Act of 1861's doing.

A worked example

A tenancy dispute in a Maharashtra village in 1955. Follow the court structure that decides it and ask, at each level, where that court comes from.

1. The munsif's court or the court of the civil judge, junior division. Its ancestry is the office created in the years after Cornwallis, described at [Sir John Shore and the Progress of the Adalat System], and it is continued by articles 233 to 237.
2. Appeal to the district judge. The office is the zillah judge of Regulation V of 1793, and article 236 defines "district judge" for the Constitution.
3. Second appeal to the High Court of Bombay, on the appellate side. That side of the court is the Sadar Diwani Adalat's inheritance, merged into the High Court by the Act of 1861 and continued by article 225.
4. Appeal to the Supreme Court of India by special leave under article 136, which is the Privy Council's special leave with a wider text and an Indian court exercising it.

Four courts, and only one of them, the last, is younger than a hundred and fifty years.

What beginners get wrong

"The Constitution created the Indian judiciary." It created one court, the Supreme Court, and continued everything below it. Articles 214, 225, 233 to 237 and 372 are the continuity provisions.

"The Supreme Court of India is the old Supreme Court at Calcutta." They are different institutions with the same name, a hundred and seventy-six years apart. The Calcutta court was abolished in 1862; the Supreme Court of India was created in 1950.

"An integrated judiciary means the Supreme Court controls all the courts." Control over the district judiciary is vested in the High Court of the State by article 235. The Supreme Court's authority over the whole system is through article 141, not through administration.

"Article 50 guarantees the separation of the judiciary from the executive." It is a Directive Principle and is not enforceable by a court. What is enforceable is judicial review under articles 32 and 226, and the guarantees of tenure and salary the later chapters set out.

Limits and criticism

Two observations are worth making at the start of Module III, and both come from Modules I and II rather than from the Constitution.

The first is that continuity was a choice and it had a price. India kept the Letters Patent, the original and appellate sides, the district hierarchy of the Regulations, the Codes and the personal laws. That gave the new republic a working judicial system on day one, which is not a small thing. It also carried forward a procedure designed for a colonial administration, and the delays that Module I first records in the 1790s and Module II records in the 1830s are recognisably the delays complained of today.

The second is that what the Constitution added was power, not structure. Judicial review, fundamental rights and article 32 gave the same courts a new function. Whether an institution built for one purpose can perform another is the question the rest of Module III is about, and the cases that answer it, from Kesavananda Bharati onwards, are cases about how far a court may go.

Quick revision

• New in 1950: a written fundamental law enforceable against the legislature; article 32, which makes the remedy itself a fundamental right; and one integrated judiciary with article 141.
• Continued: the High Courts (art. 214), their jurisdiction and law (art. 225), their superintendence (art. 227), the district judiciary (arts. 233 to 237), all laws in force (art. 372), and the Federal Court's judges and cases (art. 374).
• Article 50: a Directive Principle that the State shall take steps to separate the judiciary from the executive in the public services of the State.
• Integrated means one hierarchy administering both Union and State law with the Supreme Court's law binding on all courts; it does not mean one administering authority, because article 235 vests control over the district judiciary in the High Court.

Test yourself

1. Name the three things about the courts that were genuinely new in 1950. A written fundamental law that a court could enforce against the legislature, including fundamental rights and article 13; article 32, which makes the right to move the Supreme Court for the enforcement of those rights itself a fundamental right; and a single integrated judiciary whose apex court's declared law binds all courts under article 141.

2. Which articles carried the existing courts forward, and what did each continue? Article 214 continued a High Court for each State; article 225 continued each existing High Court's jurisdiction and the law it administered; article 227 continued its superintendence; articles 233 to 237 continued the district judiciary; article 372 continued all laws in force; and article 374 transferred the Federal Court's judges and pending proceedings.

3. What does article 50 provide, and what is its status? That the State shall take steps to separate the judiciary from the executive in the public services of the State. It is a Directive Principle of State Policy and is not enforceable by a court.

4. Explain what is and is not meant by calling the Indian judiciary "integrated". It means a single hierarchy from the subordinate courts through the High Courts to the Supreme Court, administering both Union and State law, with the Supreme Court's declared law binding on all courts. It does not mean central administration: control over the district judiciary is vested in the High Court of the State by article 235.

5. Give the ancestry of a High Court's appellate side. The Sadar Diwani Adalat, merged with the Supreme Court into the High Court by the Indian High Courts Act 1861, its jurisdiction preserved by the Letters Patent of 1865, continued by section 223 of the Government of India Act 1935 and continued again by article 225 of the Constitution.