The Judicial Process in India
Chapter Forty
Syllabus topic 3, "Judicial Process in India"
Pages 165 to 168 of 356
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.
The Judicial Process in India
3. Judicial review reaching the amending power
Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461, is what makes the Indian judicial process different in kind rather than in degree from most others.
Facts. The head of a religious mutt in Kerala challenged Kerala land reform legislation, and the petition grew into a challenge to the Constitution (Twenty-fourth), (Twenty-fifth) and (Twenty-ninth) Amendments. Thirteen judges heard it.
Held. Parliament's power to amend under Article 368 is wide but not unlimited: it does not extend to altering the basic structure or essential features of the Constitution. Golak Nath was overruled so far as it had denied the power to amend Part III, but no amendment may damage or destroy the basic structure, and the judges gave illustrative and expressly non-exhaustive lists of what that structure includes.
Why it matters here. In most constitutional democracies the final word rests with whoever may amend the constitution. In India it does not.
4. Article 32
A remedy that is itself a fundamental right. Two consequences follow. The Supreme Court cannot decline relief on discretionary grounds as freely as a court exercising an ordinary equitable jurisdiction. And any restriction on access to the Court is itself a constitutional question.
5. Public interest litigation
The distinctive Indian contribution, treated at length in [What Public Interest Litigation Is]. Its origin is S.P. Gupta v. President of India, AIR 1982 SC 149, and its procedural machinery is Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802.
What is distinctive in the WAY Indian courts decide
Long judgments and multiple opinions. Indian judgments are among the longest in the world, which makes finding the ratio unusually difficult: see [Ratio Decidendi and Obiter Dicta].
Extensive use of foreign material. Indian courts cite English, American, Canadian, South African and international authority freely, and M.C. Mehta v. Union of India, AIR 1987 SC 1086, is notable for expressly declining to be constricted by it.
Directive principles as an interpretive resource. Part IV is not enforceable but is used to give content to Part III, as in Unni Krishnan, J.P. v. State of Andhra Pradesh, AIR 1993 SC 2178.
Continuing jurisdiction. A matter is often not disposed of but retained, with directions issued over years.
Article 136. The special leave jurisdiction is discretionary and undefined, and it has become the ordinary route to the Supreme Court, which is a large part of the arrears problem.
The standing problems
Arrears. Tens of millions of cases pending across the system.
Vacancies. Sanctioned strength unfilled for long periods, which is within the appointment machinery's control.
The Judicial Process in India
Access. Cost, distance and delay keep the ordinary process out of reach for most people, which is why a special jurisdiction had to be created.
The State as the largest litigant. A substantial share of the docket is government litigation, often appeals filed as a matter of routine.
These are the "structural challenges" MU names in its 2024-25 question, treated in [New Dimensions of Judicial Activism, and the Structural Challenges].
A worked example
A citizen in a district town wishes to challenge a State rule that denies her a pension.
Where she goes. The High Court under Article 226, which is wider in purpose than Article 32 and geographically closer.
What law applies. The State rule, the parent Act, Articles 14 and 21, and the Supreme Court's decisions on all of them, binding by Article 141 wherever they were decided.
What happens if she cannot afford a lawyer. Legal aid, which Hussainara Khatoon held to be an essential ingredient of the fair procedure Article 21 requires.
What happens if the rule affects a class who cannot come. Any bona fide person may bring the matter under S.P. Gupta.
What the court can order. Quash the rule, read it down, direct payment, and award compensation on the Nilabati Behera principle if a right has been infringed.
What is distinctive in all this. Every element depends on features listed above: integration, Article 141, Article 32 and 226, and the procedural jurisdiction.
Quick revision
- Five structural features: integrated judiciary; common law method under a written supreme constitution; review reaching constitutional amendments; Article 32 as a right; public interest litigation.
- Chandra Kumar protects integration: tribunals may be created but not detached from High Court supervision.
- Kesavananda makes the Indian process different in kind: the final word does not rest with the amending power.
- Distinctive practices: long judgments and multiple opinions; extensive foreign citation; directive principles as an interpretive resource; continuing jurisdiction; Article 136.
- Standing problems: arrears, vacancies, access, and the State as the largest litigant.
Test yourself
1. Name the five structural features of the Indian judicial process. An integrated judiciary administering both Union and State law in one hierarchy; common law method operating under a written and supreme Constitution; a power of judicial review that extends even to constitutional amendments; a remedy that is itself a fundamental right in Article 32; and a distinctive procedural jurisdiction in public interest litigation.
2. How is the integrated character of the judiciary protected, and by which case? By L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, which held that the power of judicial review under Articles 226 and 227 and Article 32 is part of the basic structure and cannot be excluded, so that tribunals created under Articles 323A and 323B act as courts of first instance and remain subject to scrutiny by a Division Bench of the High Court within whose jurisdiction they fall.
The Judicial Process in India
3. Why does the combination of common law method with a written constitution create the central tension of this subject? Because common law method develops the law case by case through binding precedent and judicial reasoning, which invites judicial creativity, while a written constitution supplies a text and an amending procedure, which invites the objection that change should come by amendment rather than by decision. Indian constitutional law is largely the argument between the two.
4. List the standing problems of the Indian judicial process. Arrears running to tens of millions of cases; vacancies against sanctioned strength left unfilled for long periods; inaccessibility through cost, distance and delay, which is why a special jurisdiction had to be created for those the ordinary process could not reach; and the State being the largest single litigant, much of whose litigation is routine appeal.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.