BLS LLB 5 Years Sem 3 History of Courts 2025-26 - ATKT 60/40 Question Paper with Solutions

The Charter of 1774 established the Supreme Court at Calcutta. Two of its defects were:

1. Its jurisdiction was left undefined. The Court had jurisdiction over "His Majesty's subjects" and over persons "employed by" the Company, and neither expression was explained, so nobody could say whether a zamindar, a revenue farmer or a native law officer fell within it. The Court read the words widely, and the Patna and Cossijurah cases followed.
2. It did not define the Court's relationship with the Governor-General and Council. Two authorities were created in one town from two different sources, a Crown court and the Company's government, and the Charter did not say which was superior or where the boundary lay.

Two merits of the doctrine, as Montesquieu stated it in De l'Esprit des Lois (1748), are:

1. It prevents tyranny and protects liberty. If the legislative, executive and judicial powers are held by one person or body, that body can make an oppressive law, enforce it and then judge the oppression. Dividing the powers means power checks power, and no organ can complete an abuse by itself.
2. It secures the independence of the judiciary. A judge who is not appointed, paid or removable at the pleasure of the executive can decide against the executive, which is the condition of the Rule of Law.

Two reasons for the passing of the Act of Settlement, 1781 were:

1. To settle the conflict between the Supreme Court and the Governor-General in Council, which had reached the point of armed collision in the Cossijurah case, where the Council sent sepoys who seized the Court's own Sheriff, and then refused to appear when sued personally.
2. To define the Supreme Court's jurisdiction, which the Regulating Act, 1773 had left undefined, and in particular to settle whether zamindars, revenue farmers and the Company's officers were subject to it for acts done in their official capacity, the question raised by the Patna and Kamaluddin cases.

Two advantages of law reporting are:

1. It makes the doctrine of precedent workable. Under Article 141 the law declared by the Supreme Court binds all courts, and stare decisis requires a court to follow earlier decisions. Neither is possible unless the earlier decision has been accurately recorded and published, so reporting is the machinery of precedent.
2. It gives the law certainty and uniformity. A lawyer can advise and a citizen can order his affairs only if the law as the courts apply it can be found, and reports allow a court in one part of the country to decide a point as another court has decided it.

Two courts have the power to issue writs:

1. The Supreme Court, under Article 32, for the enforcement of Fundamental Rights only. The right to move the Supreme Court under this article is itself a Fundamental Right.
2. Every High Court, under Article 226, for the enforcement of Fundamental Rights and for any other purpose, that is for the enforcement of ordinary legal rights as well.

Both may issue habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any direction or order in the nature of them.

Meaning

The independence of the judiciary means that judges must be free to decide cases according to law and their own judgment, without fear of or favour from the executive, the legislature, the parties or public opinion. It is independence for a purpose, not a privilege: it exists so that a court can decide against the government.

Why it is necessary

1. To secure impartial adjudication, since the government is a party in a very large proportion of cases.
2. To make the Rule of Law effective, because a law binding the executive is worth nothing if the executive controls the court that applies it.
3. To make Fundamental Rights enforceable under Articles 32 and 226.
4. To enable the court to act as umpire of the federation and as guardian of the Constitution.

The safeguards in the Constitution

6. No practice after retirement: Article 124(7) for the Supreme Court, Article 220 for High Court judges before the same court and courts subordinate to it.
7. Power to punish for contempt as courts of record (Articles 129 and 215), so the courts can protect their own authority.
8. Control over the subordinate judiciary vested in the High Court (Articles 233 to 235).
9. Transfer of a High Court judge only on the collegium's recommendation, in the public interest and never as punishment (Article 222; Union of India v. Sankalchand Himatlal Sheth, 1977).
10. Separation from the executive directed by Article 50 and carried out in the criminal courts by the Code of Criminal Procedure, 1973.
11. Basic structure. Independence of the judiciary is part of the basic structure and cannot be abrogated even by amendment.

Meaning

The Rule of Law means that a country is governed by law and not by the arbitrary will of any person: every act of government must be authorised by law, everyone is subject to the same law administered by the same courts, and the legality of official action is decided by an independent judiciary. The French expression La Legalite, the principle of legality, carries the same idea.

Dicey's three principles

A. V. Dicey, in Introduction to the Study of the Law of the Constitution (1885):

1. Supremacy of law, or absence of arbitrary power. No man may be punished except for a distinct breach of law established in the ordinary manner before the ordinary courts.

2. The second is accepted with qualifications: Article 14 guarantees equality, but there are administrative tribunals under Articles 323A and 323B and express immunities for the President and Governors (Article 361) and for legislators (Articles 105 and 194).
3. The third is reversed: India has a written Constitution which is the source of the ordinary law.

Constitutional footing: the Preamble; Article 13, voiding laws inconsistent with Fundamental Rights; Article 14; Article 21, requiring a procedure that is fair, just and reasonable; Articles 32 and 226, the writ remedies; and Article 50.

Case law: Kesavananda Bharati (1973) and Indira Nehru Gandhi v. Raj Narain (1975), holding the Rule of Law part of the basic structure, so that even a constitutional amendment cannot place a named person's election beyond judicial scrutiny. ADM Jabalpur (1976) is the low point, holding the remedy suspended during the Emergency; it was answered by the Forty-fourth Amendment, 1978, which made Articles 20 and 21 non-suspendable, and expressly overruled in K. S. Puttaswamy (2017).

The two Mayor's Courts

The Charter of 1687 established at Madras a Corporation of a Mayor, twelve Aldermen and sixty or more Burgesses, with a Mayor's Court to try civil and criminal causes as a court of record, deciding summarily according to justice and good conscience, assisted by a Recorder learned in the law, with an appeal to the Admiralty Court. This was a Company court.

The Charter of 1726, granted by George I on the Company's petition, established a Mayor's Court in each of the three Presidency towns. These were Crown courts, and it is these that the question is normally about.

Constitution under the Charter of 1726

A Mayor and nine Aldermen. The quorum was the Mayor or the senior Alderman with two Aldermen. Seven of the nine Aldermen had to be natural-born British subjects. The Mayor was elected annually by the Aldermen; the Aldermen held office for life or until removed, and filled their own vacancies.

Jurisdiction

3. The Mayor and Aldermen were the Company's own servants, so a suit against the Company or a senior servant came before men subordinate to the defendant.
4. Procedure was English, technical and slow, and there was no legal profession provided for.
5. It quarrelled continually with the Governor-in-Council, which was at once the executive government, the appellate court from it, and the employer of its judges.

The Charter of 1753

The Crown settled the conflict in the Governor's favour: the Mayor and Aldermen were thereafter appointed by the Governor-in-Council; suits between Indians were excluded unless both parties expressly submitted; and a Court of Requests was created for small causes up to 20 pagodas. The Mayor's Court became in substance a Company court.

Assessment

The Mayor's Courts gave the Presidency towns their first settled civil justice, introduced English law and procedure, created courts of record, and established the appeal to the King-in-Council which lasted until 1949. They failed because their judges were not lawyers and the court was not independent of the executive it existed to check, defects repaired only by the Supreme Court of 1774.

3. Dyarchy at the Centre. Federal subjects were divided into reserved subjects, such as defence, external affairs and ecclesiastical affairs, administered by the Governor-General with counsellors, and transferred subjects, administered with ministers. This part never came into operation.
4. Distribution of powers in three lists: the Federal List, the Provincial List and the Concurrent List, with residuary powers given to the Governor-General. The Constitution follows this scheme, though it gives the residuary power to the Union Parliament.
5. A Federal Court, inaugurated on 1 October 1937, with a Chief Justice and up to six judges; exclusive original jurisdiction in disputes between the Federation and the units; appellate jurisdiction where a High Court certified a substantial question of interpretation of the Act; and advisory jurisdiction on a reference by the Governor-General. An appeal lay from it to the Privy Council, so it was not the final court.
6. Bicameral legislatures in six of the eleven provinces.
7. Extension of the franchise to about ten per cent of the population, and the continuation and extension of separate electorates for Muslims, Sikhs, Europeans, Anglo-Indians, Indian Christians and depressed classes.

Significance

Despite that, it is the single largest source of the Constitution of India: the federal structure and the three lists, the office of Governor, the Federal Court as the model for the Supreme Court, the emergency provisions, the Public Service Commissions and much of the administrative machinery were carried over in 1950.

(i) The facts

1. Maharaja Nandkumar was a Brahmin of high rank who had held revenue office in Bengal and was a long-standing rival of Warren Hastings.
2. In March 1775 he laid before the Council a written charge that Hastings had accepted bribes of over three lakhs of rupees, in connection with appointments and with the affairs of the Munny Begum.
3. Hastings's Council contained a hostile majority of Clavering, Monson and Francis, appointed under the Regulating Act, 1773. They took up the charge against Hastings's protest that his own Council could not sit in judgment on him.

1. An English statute was applied to an Indian for an act done before the Court existed, and for an offence that was not capital under his own law. The forgery was alleged to have been committed in 1770; the Supreme Court was established in 1774. Forgery was not a capital offence under Hindu or Muslim law, so a Hindu Brahmin was hanged under a penalty of which he could have had no notice.
2. The judge should not have sat. Impey and Hastings were schoolfellows and lifelong friends, and Nandkumar was the accuser of the judge's closest friend. The rule nemo judex in causa sua forbids a judge to sit where there is a real likelihood of bias, and justice must not only be done but be seen to be done. Impey neither recused himself nor left the question of a reprieve to the other judges, and he afterwards accepted from Hastings the presidency of the Sadar Diwani Adalat with a salary.

Two further reasons if the question allows: the timing, since a five-year-old forgery charge was revived only after Nandkumar accused the Governor-General; and the refusal of a reprieve, which meant that substantial and untried questions of law would be decided only after the man was dead.

ii) What was the opinion of the Supreme Council in the given case?

The facts

Kamaluddin Ali Khan held a farm of the revenue as ostensible holder, that is in his own name but on behalf of Kanta Babu, the banian of Warren Hastings, who was the real party in interest. Arrears being found due, the Calcutta Revenue Council ordered his committal to prison without bail. He applied to the Supreme Court at Calcutta for a writ of habeas corpus.

(i) Could Kamaluddin get a remedy?

Yes. The Supreme Court granted him relief and admitted him to bail. It held:

1. That the Supreme Court had no jurisdiction in matters of revenue. Revenue collection was an act of the government of the country, entrusted to the Company as Diwan since 1765, and not a subject for a Crown court sitting at Calcutta.
2. That Kamaluddin, as a revenue farmer, was not a person "employed by" the Company within the meaning of the Regulating Act, 1773, and so was not within the Court's jurisdiction at all.
3. That the Council possessed the power to imprison a defaulting revenue debtor summarily, as the previous governments of Bengal had done, and that this power was necessary to realise the revenue.
4. That the decision was destructive of the revenue administration: if every defaulting farmer or surety could obtain bail at Calcutta, the summary process by which arrears were collected would become unworkable and the Company's finances would collapse.
5. That the Court was, by such decisions, extending its jurisdiction over the whole native population, which Parliament had never intended.

The Council therefore protested in the strongest terms, and this case is one of those laid before the parliamentary Select Committee.

i) What were the issues in the given case? ii) What was the decision of the Supreme Court?

The case

This is the Swaroop Chand case, one of the revenue cases through which the Supreme Court at Calcutta came into conflict with the Governor-General in Council after the Regulating Act, 1773. Swaroop Chand stood surety for the payment of the Company's revenue from Dacca, and acted as treasurer of the revenues of the Dacca provincial division. The balance due from him was fixed at Rs 10,000, which he disputed, and he was afterwards found by the revenue authorities to be in default to the extent of Rs 66,745, for which he was proceeded against and confined.

(i) The issues

1. That where the account is disputed, the person proceeded against must be admitted to bail until the enquiry into his obligation to pay has been completed, since imprisonment cannot precede the determination of liability.
2. That a surety, or an ostensible holder, is not to be imprisoned until the person primarily liable has been called on to pay the arrears and has been proved insolvent.
3. That the Court had jurisdiction to examine the legality of the detention, the liberty of the subject being in question, and that the return made by the revenue authorities was defective.

The consequences

The Governor-General in Council protested that the decision struck at the collection of the revenue, on which the Company's existence in Bengal depended. The conflict, with the Kamaluddin, Patna and Cossijurah cases, went before a parliamentary Select Committee, and the Act of Settlement, 1781 expressly excluded revenue matters, and acts done in the collection of the revenue, from the Supreme Court's jurisdiction.

1. Whether the Supreme Court had jurisdiction over the Company's Indian law officers and over a farmer of land revenue, that is whether the Kazi, the Muftis and Bahadur Beg were persons "employed by" the Company within the Regulating Act, 1773.
2. Whether acts done in an official or judicial capacity in the mofussil could be tried at Calcutta, by a court applying English law, at the suit of a private person.
3. Whether the proceeding before the Provincial Council was lawful at all, it having decided the title to an estate on a report by officers who had themselves seized the property, without trying the issue judicially or hearing the parties properly.
4. Whether the widow had been wrongfully dispossessed, and what remedy she was entitled to.

(ii) The decision of the Supreme Court

1. It held that it had jurisdiction, on the footing that the defendants were persons employed by the Company.
2. It held the proceedings of the law officers, and the seizure made under them, to be illegal. Officers acting outside their lawful authority cannot plead the Council's order, because the order itself rested on their own defective proceeding.

in so far as the dispute involves a question, whether of law or fact, on which the existence or extent of a legal right depends.

Excluded: disputes arising out of a treaty or agreement entered into before the commencement of the Constitution which continues in operation, and, by the proviso, certain other agreements. Ordinary commercial disputes between the Union and a State, and disputes not involving a legal right, are outside it.

2. Writ jurisdiction (Article 32)

The Court may issue directions, orders or writs, including habeas corpus, mandamus, prohibition, quo warranto and certiorari, for the enforcement of Fundamental Rights. The right to move the Court under Article 32 is itself a Fundamental Right, which Dr Ambedkar called the "heart and soul" of the Constitution. Relief cannot be refused on the ground of an alternative remedy where a Fundamental Right is infringed, and the right may be suspended only under Article 359 during an emergency, and never in respect of Articles 20 and 21 since the Forty-fourth Amendment, 1978.

3. Appellate jurisdiction

4. Special leave to appeal (Article 136)

The Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed by any court or tribunal in India, except a court or tribunal constituted under a law relating to the Armed Forces.

This is the widest jurisdiction in the Constitution and the route by which the greater part of the Court's work reaches it. It is discretionary and exceptional, to be exercised where there has been a grave miscarriage of justice or a substantial question of law, and it confers no right of appeal on a litigant.

5. Advisory jurisdiction (Article 143)

The President may refer to the Court:

1. a question of law or fact which has arisen or is likely to arise and is of public importance, on which the President thinks it expedient to obtain the Court's opinion. The Court may report its opinion, and has occasionally declined to answer;
2. a dispute arising out of a pre-Constitution treaty or agreement excluded from Article 131, on which the Court shall report its opinion.

8. Articles 141, 142 and 144

Article 141: the law declared by the Supreme Court is binding on all courts in India. Article 142: the Court may pass any decree or order necessary for doing complete justice in a cause before it, and such orders are enforceable throughout India. Article 144: all authorities, civil and judicial, shall act in aid of the Supreme Court.

9. Jurisdiction created by the Court itself

Public interest litigation. By relaxing locus standi under Article 32, the Court allowed any public-spirited person to move it on behalf of those unable to move it themselves, and has entertained petitions on letters and postcards. This is not a jurisdiction the Constitution conferred; it is one the Court developed out of Article 32.

For full marks, cover: the circumstances, the features under the three heads of the Company at home, the government in India and the judiciary, then merits and demerits separately, and an assessment ending with what came after it.

The circumstances

By 1772 the East India Company was in crisis. It had acquired the Diwani of Bengal, Bihar and Orissa in 1765 and had governed through the dual system, taking the revenue while leaving administration to Indian officials, with the result of maladministration and the famine of 1770, in which a large part of the population of Bengal died. Its servants had grown rich on private trade and presents while the Company itself was near bankruptcy, and in 1772 it applied to the Government for a loan of a million pounds. Parliament used the occasion to intervene. The Regulating Act, 1773 (13 Geo. III c. 63) is the result: the first intervention by the British Parliament in the Company's Indian administration.

2. Decisions were by majority, the Governor-General having a casting vote only in the case of equality. He could therefore be outvoted by his own Council.
3. The Presidencies of Bombay and Madras were subordinated to Bengal in matters of war and peace and in making treaties, except in cases of imminent necessity or where they had received direct orders from the Company.
4. The Governor-General in Council was empowered to make rules, ordinances and regulations for the good order of the settlement, provided they were registered in the Supreme Court and not repugnant to English law.
5. Prohibition of private trade by the Company's servants and of the acceptance of presents, gifts or rewards from Indians. The Governor-General, members of Council and judges were forbidden to engage in trade.

C. As regards the judiciary

1. The Crown was empowered to establish, by charter, a Supreme Court of Judicature at Fort William, which was created by the Charter of 26 March 1774, consisting of a Chief Justice and three puisne judges, all English barristers of at least five years' standing.

3. It established an independent court applying a known law. The Supreme Court was staffed by professional barristers appointed by the Crown, not by merchants or Company servants, and its writs gave the subject a remedy against official action that he had never had. This is the Act's greatest single achievement.
4. It attacked corruption directly by prohibiting private trade and presents, and it laid the foundation of a salaried, non-trading civil service.
5. It made the Company's affairs visible to the Government by requiring correspondence to be laid before the Treasury and the Secretary of State.
6. It gave the Company's government a legislative power on a proper footing, with the safeguard of registration in the Supreme Court.

Demerits

1. The Governor-General could be outvoted by his own Council. With a casting vote only in equality, Hastings was regularly defeated by the majority of Clavering, Monson and Francis, and the government of Bengal was paralysed by faction at the very moment it needed to act.

7. It did nothing for the Indian population. It regulated the Company and created a court for British subjects; the administration of justice in the mofussil was left where it was.
8. The prohibition of presents and private trade was not enforceable in practice, for want of any machinery of enforcement.

Assessment and what followed

The Act is best described as a necessary first attempt that failed in execution. Its objects, parliamentary control, a single government, an independent judiciary and an end to corruption, were the right objects, and all four were eventually achieved. Its failure lay in drafting: it created powers without defining them and authorities without ranking them.

For full marks, cover: the pre-British position, the Mayor's Courts and the Supreme Courts, the Company's courts and Regulation VII of 1793, the Legal Practitioners Acts, the High Courts, the Indian Bar Councils Act 1926, the Advocates Act 1961, and an assessment.

1. Before the British

Under the Hindu system a litigant might be represented, but there was no organised profession; learning in the Dharmashastra belonged to the pandit, who advised the court rather than a party. Under Muslim rule the vakil appeared for a party before the Kazi, but he was closer to an agent than to a lawyer: appointed by the litigant, belonging to no organised body, and holding no qualification the State recognised.

2. The Mayor's Courts and the Supreme Courts: exclusion

1. The Charter of 1726, which established the Mayor's Courts, made no provision whatever for a legal profession. Untrained men practised, and the standard was very low.

1. Legal Practitioners Act, 1846. Made the office of pleader open to all persons of whatever nationality or religion who were duly certified, and allowed attorneys and barristers enrolled in the Supreme Courts to plead in the Company's courts. This is the first real breach in the wall between the two systems.
2. Legal Practitioners Act, 1853 carried the process further, allowing barristers and attorneys of the Supreme Courts to plead in the Company's courts subject to rules.

5. The High Courts and after

1. Indian High Courts Act, 1861 and the Letters Patent: the new High Courts, replacing both the Supreme Courts and the Sadar Adalats, were empowered to approve, admit and enrol advocates, vakils and attorneys. Indian vakils were admitted to the High Courts, and from 1866 onwards they were increasingly permitted to appear on the original side as well.
2. Legal Practitioners Act, 1879 consolidated the law, bringing the six grades, advocates, vakils, attorneys, pleaders, mukhtars and revenue agents, under one enactment, and gave the High Courts the power of discipline.

2. The Fourteenth Report of the Law Commission (1958) on the Reform of Judicial Administration made the same recommendations and added proposals on legal education.
3. The Advocates Act, 1961 gave effect to both. It repealed the Acts of 1879 and 1926, recognised one class of practitioner, the advocate, with senior advocates under section 16 as the only surviving distinction, created State Bar Councils and the Bar Council of India, gave every advocate a right to practise throughout India in all courts including the Supreme Court under section 30, vested discipline in the profession under sections 35 to 38 with an appeal to the Supreme Court, and entrusted the standards of legal education to the Bar Council of India.

7. Assessment

The history is one of movement from exclusion to equality. The Indian practitioner began outside the Crown courts altogether, was admitted first to the Company's courts under a regulated and inferior status in 1793, was opened to the profession irrespective of race in 1846, entered the High Courts after 1861, obtained partial self-government in 1926, and finally in 1961 a single national profession in which no distinction of race or grade survives.

For full marks, cover: what the dual system was, the two lines of courts, the differences, the difficulties, the reform movement between 1834 and 1861, and the amalgamation.

1. What the dual system was

Before 1861 there existed side by side in British India two systems of courts of entirely dissimilar origin:

1. the Crown's courts in the Presidency towns, created by Royal Charters under Acts of Parliament, applying English law; and
2. the Company's courts in the mofussil, created by the Company under its own Regulations, applying Hindu and Muslim personal law, custom and the Regulations.

2. The Crown's courts

The Supreme Courts at Calcutta (1774), Madras (1801) and Bombay (1823), each with a Chief Justice and three puisne judges who had to be English barristers of five years' standing, appointed by the Crown.

Law: the Regulations, personal law, and where neither applied, justice, equity and good conscience.

4. The differences

5. The difficulties it created

1. Conflict of jurisdiction, with no common superior in India to resolve it.
2. Different law for the same dispute, so that the result turned on which court took the case.

3. Second Law Commission (1853): reported on the judicial establishments and recommended the amalgamation of the Supreme Courts and the Sadar Adalats and the codification of procedure. Its recommendations are the direct source of the Act of 1861.
4. The codes: the Code of Civil Procedure, 1859, the Indian Penal Code, 1860, the Code of Criminal Procedure, 1861, giving the courts one body of law to apply. A single hierarchy of courts is workable only if there is one law for it to administer.
5. Government of India Act, 1858: after the Revolt of 1857 the government of India passed from the Company to the Crown, which removed the constitutional basis of the distinction. Once the Company no longer governed, "Company courts" had no reason to exist.

7. The amalgamation: the Indian High Courts Act, 1861

The Act abolished the Supreme Courts and the Sadar Diwani and Sadar Nizamat Adalats and merged their jurisdictions into one High Court for each Presidency, constituted by Letters Patent in 1862, re-issued 1865. Each had a Chief Justice and not more than fifteen puisne judges, of whom at least one-third barristers and at least one-third covenanted civil servants, so that both traditions sat on one bench. The Crown could establish further High Courts elsewhere; Allahabad followed in 1866.

For full marks, cover: the meaning, why it is necessary, then the constitutional provisions under separate heads, the case law on appointments, the position as basic structure, the limits, and an assessment.

Meaning

Independence of the judiciary means that judges must be free to decide according to law and their own judgment, without fear of or favour from the executive, the legislature, the parties or public opinion. It is not a privilege of judges but a condition of the Rule of Law: it exists so that a court can decide against the government.

It has two aspects. Institutional independence is the freedom of the judiciary as an organ from the control of the other two. Individual independence is the freedom of the particular judge to decide the case before him.

Why it is necessary

1. The government is a party in a very large proportion of litigation, and no one may be a judge in his own cause.

3. Qualifications fixed by the Constitution. Article 124(3): a judge of a High Court for five years, an advocate of a High Court for ten years, or a distinguished jurist. Article 217(2): ten years' judicial office or ten years as an advocate. The executive cannot appoint outside these.

4. Security of tenure. Until 65 for the Supreme Court (Article 124(2)) and 62 for a High Court (Article 217(1)). A judge does not hold office at the pleasure of the executive.

5. Removal only by a stringent process. Article 124(4), applied to High Court judges by Article 217(1)(b): an order of the President after an address by each House of Parliament supported by a majority of the total membership and by not less than two-thirds of those present and voting, presented in the same session, and only for proved misbehaviour or incapacity. The Judges (Inquiry) Act, 1968 requires investigation by a committee of three before the motion is taken up. The word "proved" is what prevents removal from becoming a vote of no confidence in a judgment.

10. Transfer only on the collegium's recommendation. Article 222: the President may transfer a High Court judge after consultation with the Chief Justice of India, and the power may be exercised only in the public interest and never as a punishment (Union of India v. Sankalchand Himatlal Sheth, 1977).

11. Control over the subordinate judiciary. Articles 233 to 235 vest in the High Court the control over district courts and courts subordinate to them, including posting, promotion and leave, and require the Governor to consult the High Court in appointing district judges.

12. Power of judicial review, which is what makes the independence useful: Article 13, Articles 32 and 226, and Articles 131 to 136.

13. Separation in the criminal courts. The Code of Criminal Procedure, 1973, carrying out Article 50, divides magistrates into Judicial Magistrates under the control of the High Court and Executive Magistrates under the State Government. Before 1973 the District Magistrate was both.

The case law on appointments

The independence of the judiciary has been fought out chiefly over appointments.

Limits, and the criticism

Independence is not unaccountability. A judge may be removed for proved misbehaviour; his decisions are subject to appeal; his judgments are open to public and academic criticism; and the Restatement of Values of Judicial Life (1997) adopted by the Supreme Court states the conduct expected of him.

The criticism runs in the other direction: that the collegium is opaque, keeps no reasons and is answerable to nobody, that the process is slow and leaves large numbers of vacancies unfilled, and that between "no misbehaviour" and "removal by Parliament" there is no workable mechanism for dealing with misconduct short of the gravest.