The Judicial Process in India

In one line

India has a single integrated judiciary applying one body of law to the whole Union, and almost everything distinctive about its judicial process follows from that fact and from Article 32.

In the wording a student can write in an exam: the judicial process in India is distinguished by five structural features. It is an integrated judiciary: one hierarchy of courts administers both Union and State law, unlike the dual system of the United States. It is common law in method but operates under a written and supreme Constitution. It has an entrenched power of judicial review extending even to constitutional amendments. It couples rights with a remedy that is itself a fundamental right, in Article 32. And it has developed a distinctive procedural jurisdiction, public interest litigation, which has no close counterpart elsewhere.

1. An integrated judiciary

The Supreme Court at the apex; High Courts in the States; subordinate civil and criminal courts under them; tribunals alongside them but subject to High Court supervision after L. Chandra Kumar v. Union of India, AIR 1997 SC 1125.

Facts. A batch of matters questioned whether Articles 323A(2)(d) and 323B(3)(d), which allowed exclusion of the jurisdiction of all courts except the Supreme Court under Article 136 in tribunal matters, could stand against judicial review under Articles 226 and 227 and Article 32; whether tribunals could test the constitutional validity of statutes; and whether they were effective substitutes for the High Courts.

Held. The power of judicial review vested in the High Courts under Articles 226 and 227 and in the Supreme Court under Article 32 is part of the basic structure and cannot be excluded. The exclusion clauses were struck down to that extent. Tribunals may test the vires of subordinate legislation and statutes, but their decisions are subject to scrutiny before a Division Bench of the High Court within whose jurisdiction they fall, and they act as courts of first instance rather than as substitutes for the High Court.

Why it matters here. Integration is not merely descriptive. It is protected: a legislature may create tribunals but may not detach them from the hierarchy.

Consequences of integration. One law throughout the Union, since Article 141 makes the Supreme Court's declaration binding everywhere; no conflict between federal and State court systems; and a single career judiciary at the subordinate level.

2. Common law method under a written constitution

The method is the common law's: adversarial procedure, oral argument, binding precedent, reasoned judgments, development case by case. The framework is a written supreme constitution with justiciable rights.

The combination is unusual and it is the source of the subject's central tension. Common law method invites judicial development, which Module I describes. A written constitution invites the objection that development should come by amendment. Indian constitutional law is the argument between the two.