UPSC IAS exam preparation - Governance in India - Lecture 7

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The High Courts

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1.0 CONSTITUTIONAL PROVISIONS

The judiciary in Indian States consists of a High Court and several subordinate courts. The Parliament of the Union can establish by law a common high court for two or more states, or for one or more states and one or more union territories. Every State has a High Court operating within its territorial jurisdiction. In India only the Parliament can control the High Courts or alter its constitution or organization. 

Article 214 – High Courts for States

There shall be a High Court for each State.

Article 215 – High Courts to be Courts of Record 

Every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.

Article 216 – Constitution of High Courts 

Every High Court shall consist of a Chief Justice and such other Judges as the President may from time to time deem it necessary to appoint.

Article 217 – Appointment and conditions of the office of a Judge of a High Court 

• Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court, and shall hold office, in the case of an additional or acting Judge, as provided in article 224, and in any other case, until he attains the age of sixty-two years: Provided that 

1. a Judge may, by writing under his hand addressed to the President, resign his office;
2. a Judge may be removed from his office by the President in the manner provided in clause (4) of article 124 for the removal of a Judge of the Supreme Court;
3. the office of a Judge shall be vacated by his being appointed by the President to be a Judge of the Supreme Court or by his being transferred by the President to any other High Court within the territory of India.

• A person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India and

1. has for at least ten years held a judicial office in the territory of India; or
2. has for at least ten years been an advocate of a High Court or of two or more such Courts in succession.

Explanation — For the purposes of this clause

1. in computing the period during which a person has held judicial office in the territory of India, there shall be included any period, after he has held any judicial office, during which the person has been an advocate of a High Court or has held the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law;
2. in computing the period during which a person has been an advocate of a High Court, there shall be included any period during which the person 5[has held judicial office or the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law after he became an advocate;
3. in computing the period during which a person has held judicial office in the territory of India or been an advocate of a High Court, there shall be included any period before the commencement of this Constitution during which he has held judicial office in any area which was comprised before the fifteenth day of August, 1947, within India as defined by the Government of India Act, 1935, or has been an advocate of any High Court in any such area, as the case may be.

• If any question arises as to the age of a Judge of a High Court, the question shall be decided by the President after consultation with the Chief Justice of India and the decision of the President shall be final.

Article 218 –  Application of certain provisions relating to Supreme Court to High Courts 

The provisions of clauses (4) and (5) of article 124 shall apply in relation to a High Court as they apply in relation to the Supreme Court with the substitution of references to the High Court for references to the Supreme Court.

Article 219 – Oath or affirmation by Judges of High Courts 

Every person appointed to be a Judge of a High Court shall, before he enters upon his office, make and subscribe before the Governor of the State, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule.

Article 220 – Restriction on practice after being a permanent Judge 

No person who, after the commencement of this Constitution, has held office as a permanent Judge of a High Court shall plead or act in any court or before any authority in India except the Supreme Court and the other High Courts.

Explanation – In this article, the expression "High Court" does not include a High Court for a State specified in Part B of the First Schedule as it existed before the commencement1 of the Constitution (Seventh Amendment) Act, 1956.

Article 221 –  Salaries, etc., of Judges 

1. There shall be paid to the Judges of each High Court such salaries as may be determined by Parliament by law and, until provision in that behalf is so made, such salaries as are specified in the Second Schedule.
2. Every Judge shall be entitled to such allowances and to such rights in respect of leave of absence and pension as may from time to time be determined by or under law made by Parliament and, until so determined, to such allowances and rights as are specified in the Second Schedule: Provided that neither the allowances of a Judge nor his rights in respect of leave of absence or pension shall be varied to his disadvantage after his appointment.

Article 222 – Transfer of a Judge from one High Court to another 

1. The President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court. 
2. When a Judge has been or is so transferred, he shall, during the period he serves, after the commencement of the Constitution (Fifteenth Amendment) Act, 1963, as a Judge of the other High Court, be entitled to receive in addition to his salary such compensatory allowance as may be determined by Parliament by law and, until so determined, such compensatory allowance as the President may by order fix.

Article 223 – Appointment of acting Chief Justice 

When the office of Chief Justice of a High Court is vacant or when any such Chief Justice is, by reason of absence or otherwise, unable to perform the duties of his office, the duties of the office shall be performed by such one of the other Judges of the Court as the President may appoint for the purpose.

Article 224 – Appointment of additional and acting Judges 

1. If by reason of any temporary increase in the business of a High Court or by reason of arrears of work therein, it appears to the President that the number of the Judges of that Court should be for the time being increased, the President may appoint duly qualified persons to be additional Judges of the Court for such period not exceeding two years as he may specify. 
2. When any Judge of a High Court other than the Chief Justice is by reason of absence or for any other reason unable to perform the duties of his office or is appointed to act temporarily as Chief Justice, the President may appoint a duly qualified person to act as a Judge of that Court until the permanent Judge has resumed his duties. 
3. No person appointed as an additional or acting Judge of a High Court shall hold office after attaining the age of sixty-two years.

Article 224(a) –  Appointment of retired Judges at sittings of High Courts

Notwithstanding anything in this Chapter, the Chief Justice of a High Court for any State may at any time, with the previous consent of the President, request any person who has held the office of a Judge of that Court or of any other High Court to sit and act as a Judge of the High Court for that State, and every such person so requested shall, while so sitting and acting, be entitled to such allowances as the President may by order determine and have all the jurisdiction, powers and privileges of, but shall not otherwise be deemed to be, a Judge of that High Court:

Provided that nothing in this article shall be deemed to require any such person as aforesaid to sit and act as a Judge of that High Court unless he consents so to do.

Article 225 – Jurisdiction of existing High Courts 

Subject to the provisions of this Constitution and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by this Constitution, the jurisdiction of, and the law administered in, any existing High Court, and the respective powers of the Judges thereof in relation to the administration of justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in Division Courts, shall be the same as immediately before the commencement of this Constitution:

Provided that any restriction to which the exercise of original jurisdiction by any of the High Courts with respect to any matter concerning the revenue or concerning any act ordered or done in the collection thereof was subject immediately before the commencement of this Constitution shall no longer apply to the exercise of such jurisdiction.

Article 226 – Power of High Courts to issue certain writs 

• Notwithstanding anything in article 32 every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including 4[writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.
• The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories. 
• Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without

1. furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and
2. giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated.

• The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of article 32.

Article 226(a) – Constitutional validity of Central laws not to be considered in proceedings under article 226. 

Rep. by the Constitution (Forty-third Amendment) Act, 1977, s. 8 (w.e.f. 13-4-1978).

Article 227 – Power of superintendence over all courts by the High Court 

• Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.
• Without prejudice to the generality of the foregoing provision, the High Court may

1. call for returns from such courts;
2. make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and
3. prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts.

• The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practising therein: Provided that any rules made, forms prescribed or tables settled under clause (2) or clause (3) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor.
• Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces.

Article 228 – Transfer of certain cases to High Court 

If the High Court is satisfied that a case pending in a court subordinate to it involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the case, it shall withdraw the case and may

1. either dispose of the case itself, or
2. determine the said question of law and return the case to the court from which the case has been so withdrawn together with a copy of its judgment on such question, and the said court shall on receipt thereof proceed to dispose of the case in conformity with such judgment.

Article 228A – Special provisions as to disposal of questions relating to constitutional validity of State laws. 

Rep. by the Constitution (Forty-thirdAmendment) Act, 1977, s. 10 (w.e.f. 13-4-1978).

Article 229 – Officers and servants and the expenses of High Courts 

1. Appointments of officers and servants of a High Court shall be made by the Chief Justice of the Court or such other Judge or officer of the Court as he may direct:
2. Provided that the Governor of the State may by rule require that in such cases as may be specified in the rule no person not already attached to the Court shall be appointed to any office connected with the Court save after consultation with the State Public Service Commission. 
3. Subject to the provisions of any law made by the Legislature of the State, the conditions of service of officers and servants of a High Court shall be such as may be prescribed by rules made by the Chief Justice of the Court or by some other Judge or officer of the Court authorised by the Chief Justice to make rules for the purpose: Provided that the rules made under this clause shall, so far as they relate to salaries, allowances, leave or pensions, require the approval of the Governor of the State.
4. The administrative expenses of a High Court, including all salaries, allowances and pensions payable to or in respect of the officers and servants of the Court, shall be charged upon the Consolidated Fund of the State, and any fees or other moneys taken by the Court shall form part of that Fund.

Article 230 – Extension of jurisdiction of High Courts to Union territories 

• Parliament may by law extend the jurisdiction of a High Court to, or exclude the jurisdiction of a High Court from, any Union territory.
• Where the High Court of a State exercises jurisdiction in relation to a Union territory,

1. nothing in this Constitution shall be construed as empowering the Legislature of the State to increase, restrict or abolish that jurisdiction; and
2. the reference in article 227 to the Governor shall, in relation to any rules, forms or tables for subordinate courts in that territory, be construed as a reference to the President.

Article 231 – Establishment of a common High Court for two or more States 

• Notwithstanding anything contained in the preceding provisions of this Chapter, Parliament may by law establish a common High Court for two or more States or for two or more States and a Union territory.
• In relation to any such High Court,

1. the reference in article 217 to the Governor of the State shall be construed as a reference to the Governors of all the States in relation to which the High Court exercises jurisdiction;
2. the reference in article 227 to the Governor shall, in relation to any rules, forms or tables for subordinate courts, be construed as a reference to the Governor of the State in which the subordinate courts are situate; and 
3. the references in articles 219 and 229 to the State shall be construed as a reference to the State in which the High Court has its principal seat: Provided that if such principal seat is in a Union territory, the references in articles 219 and 229 to the Governor, Public Service Commission, Legislature and Consolidated Fund of the State shall be construed respectively as references to the President, Union Public Service Commission, Parliament and Consolidated Fund of India.

2.0 EXPLANATIONS

2.1 Appointment and Conditions of Office of a Judge

• Every High Court shall consist of a Chief Justice and such other Judges as the President of India may from time to time appoint.
• The President has the power to appoint

1. Additional Judges for a temporary period not exceeding two years, for the clearance of arrears of work in a High Court.
2. An acting Judge, when a permanent Judge of a High Court (other than a Chief Justice) is temporarily absent or unable to perform his duties or is appointed to act temporarily as Chief Justice.

Every Judge of a High Court shall be appointed by the President. In making the appointment, the President shall consult the Chief Justice of India, the Governor of the State (and also the Chief Justice of that High Court) in the matter of appointment of a judge other than the Chief Justice.

2.2 Tenure

A Judge of the High Court shall hold office until the age of 62 years. Every Judge, permanent, additional or acting, may vacate his office earlier in any of the following ways

1. By resignation in writing addressed to the President
2. By being appointed a Judge of the Supreme Court or being transferred to any other High Court, by the President
3. By removal by the President on an address of both Houses of Parliament (supported by the vote of 2/3 of the members present), on the ground of proved misbehavior or incapacity 

2.3 Salaries, etc.

A Judge of the High Court is entitled to such salary, allowances and rights in respect of leave and pension as Parliament may from time to time determine, but such salary, allowances and rights cannot be varied by Parliament to the disadvantage of a Judge after his appointment.

2.4 Qualifications for appointment

The qualifications laid down in the Constitution for being eligible for appointment as a Judge of the High Court are that 

1. He must be a citizen of India
2. He must not be over 62 years of age; and 
3. He must have ten years’ experience as a judicial officer in the territory of India; or as an advocate of a High Court or of two or more such Courts in succession.

2.5 Independence of the Judges

Similar to the Supreme Court, the Constitution seeks to maintain the independence of the Judges of the High Courts  by the following provisions:

1. By laying down that a Judge of the High Court shall not be removed, except in the manner provided for the removal of a Judge of the Supreme Court;
2. By providing that the expenditure in respect of the salaries and allowances of the Judges shall be charged on the Consolidated Fund of the State;
3. By specifying in the Constitution the salaries payable to the Judges and providing that the allowances of a Judge or his rights in respect of absence or pension shall not be varied by Parliament to his disadvantage after his appointment except under a Proclamation of financial emergency under Article 360;  and
4. By laying down that after retirement a permanent Judge of High Court shall not plead or act in a Court or before any authority in India, except the Supreme Court and a High Court other than the High Court in which he had held his office.

3.0 Control of the Union over High Court

The control of the Union over a High Court in India is exercised in the following matters:

1. Appointment, transfer from one High Court to another and removal and determination of dispute as to age of Judges of High Courts;
2. The constitution and organization of High Courts and the power to establish a common High Court for two or more States and to extend the jurisdiction of a High Court to, or to exclude its jurisdiction from, a Union Territory, are all exclusive powers of the Union Parliament.

4.0 Jurisdiction

The Constitution has not tried to define or classify the different types of jurisdiction in the case of High Court as it  has done in the case of the Supreme Court. The reason was that the High Courts had existed in the country before the Constitution was framed and had well defined jurisdictions whereas the Supreme Court was a newly created institution.

4.1 Original Jurisdiction

For the High Court of Kolkata, Mumbai and Chennai - civil cases of value exceeding Rs.2,000, criminal cases referred by the Presidency Magistrates and cases relating to admiralty, will, divorce, marriage, company laws and contempt of court.

1. Issuing prerogative writs for the enforcement of Fundamental Rights and for any other purpose.
2. Settlement of disputes relating to the election of members to Union and State legislatures.

4.2 Writ Jurisdiction

Article 226 enjoins upon the High Courts the power to protect the Fundamental Rights guaranteed under the Constitution within their respective territorial jurisdictions. Article 32 had already entrusted ultimate protection of the Fundamental Rights to the Supreme Court but it was realized that it would not be possible for everyone to approach the Supreme Court. The power to protect Fundamental Rights was, therefore, given to the High Courts also, which made it possible for a larger number of people to approach them and get these rights enforced.

The jurisdiction to issue writs under these Articles is larger in the case of High Court in as much as while the Supreme Court can issue them only where a fundamental right has been infringed, a High Court can issue them not only in such cases but also where an ordinary legal right has been infringed, provided a writ is a proper remedy in such cases, according to well-established principles.

The High Court has original jurisdiction in such matters as writs and Appellate jurisdiction over all subordinate courts in their jurisdiction. Every High court has the power to issue to any person or authority including any government within its jurisdiction, direction, or orders including writs which are in the nature of Habeas Corpus, Mandamus, Prohibition, Quo-warranto and Certiorari or any of them for enforcement of fundamental rights conferred by part III of the constitution and for any other purpose.

Election petitions challenging the elections of Members of Parliament or member of State Legislative Assembly or other local bodies can be filed in the concerned High Court.

The High Courts have Appellate jurisdiction in both civil and criminal cases against the decisions of lower courts. They can decide revenue cases also.

Appeals can be filed against the decision of a Sessions Judge if the accused has been sentenced to imprisonment for 7 years or more. Capital punishment given by a Sessions judge is not executed unless it is confirmed by the High Court.

Under Revisory jurisdiction, the High Court is empowered to call for the records of any court to satisfy itself about the correctness of the legality of the orders passed. This power may be exercised on the petition of the interested party or it can suo motu call for the records and pass necessary orders.

The High Court may withdraw a case from a lower court if it is satisfied that the case involves a substantial question of law as to the interpretation of the Constitution, the determination of which is necessary for the disposal of the case. The High Court can after delivering judgement send back the case to the court of hearing which proceeds on the lines of the judgement of the High Court.

All Courts excepting tribunals dealing with the Armed forces, are under the supervision of the High Court. This power is enjoyed under Art 227 of the Constitution. A High Court is competent to grant a writ of certiorari, if the tribunal either acts without jurisdiction or in excess of its jurisdiction as conferred by the statutes by which it was created or it makes an order contrary to the rules of natural justice or where there is some error of law apparent on the face of its record.

Thus administration of the state's judiciary is the essential function of the High Court. It is consulted while appointments are made to the lower courts. It forms rules and regulations regarding the working of the subordinate courts in the state. It also determines the number of cases to be dealt with by each of the lower courts during a period of time.

Every High Court is a court of record. Subordinate Courts are bound to follow the decisions of the High Courts. Its proceedings and decisions are referred to in all future cases. It has the power to punish for contempt of court.

4.3 Subordinate courts

The hierarchy of the courts that lie subordinate to high courts are referred to as subordinate courts. It is for the state governments to enact for the creation of subordinate court. The nomenclature will differ in case of state to state. Below the High court, there are district courts for each district, and has appellate jurisdiction in the district. Under district courts, there are lower courts such as Additional District court, Sub court, Munsiff Magistrate court, Court of special judicial magistrate of II class, Court of special judicial Magistrate of I class, Court of special munsiff magistrate for factories act and labour laws,etc. Below the subordinate courts at the grass root level are the panchayat courts. These are however not considered as courts under the purview of the criminal court’s jurisdiction.

A High Court is competent to grant a writ of Certiorari, if the tribunal either acts without jurisdiction or in excess of its jurisdiction as conferred by the Statutes by which it was created or it makes an order contrary to the rules of natural justice or where there is some error of law apparent on the face of its record.

5.0 Public Interest Litigation (PIL)

The concept of PIL has its origin in Australia. It is a socio-economic movement generated by the judiciary to take justice specially to the weaker sections of the society. The idea comes from 'atio popularis' of the Roman jurisprudence, which allowed court access to every citizen in matters of public wrongs. The purpose of PIL is not the enforcement of the right of one person against the other but to take justice to the deprived sections of the society. The court is not exercising any extra-constitutional jurisdiction and is now firmly rooted in article 14, i.e protection against all arbitrariness and lawlessness in administrative action, and article 21 that provides for protection of life embodying everything that goes for a dignified living, including rightful concern for directives principles applying to weaker sections.

5.1 The PIL has served three important purposes

1. It has enormously increased the awareness among the masses about their rights and the institutional arrangements in the form of the  judiciary to get them implemented. It is said that the PIL democratized the judiciary.
2. Through the PIL, the Supreme Court has vastly expanded the scope of the fundamental rights by liberally interpreting Art.32 and 226.
3. It has forced the executive and the legislature to discharge their constitutional obligations towards the people. 

5.2 Milestones of Public Interest Litigation in India

One of the earliest cases of public interest litigation was 

Hussainara Khatoon vs. State of Bihar: This case was concerned with a series of articles published in a prominent newspaper - the Indian Express - which exposed the plight of under trial prisoners in the state of Bihar. A writ petition was filed by an advocate drawing the Court's attention to the deplorable plight of these prisoners. Many of them had been in jail for longer periods than the maximum permissible sentences for the offences they had been charged with. The Supreme Court accepted the locus standi of the advocate to maintain the writ petition. Thereafter, a series of cases followed in which the Court gave directions through which the 'right to speedy trial' was deemed to be an integral and an essential part of the protection of life and personal liberty. Soon thereafter, two noted professors of law filed writ petitions in the Supreme Court highlighting various abuses of the law, which, they asserted, were a violation of Article 21 of the Constitution. 

These included inhuman conditions prevailing in protective homes, long pendency of trials in court, trafficking of women, importation of children for homosexual purposes, and the non-payment of wages to bonded labourers among others. The Supreme Court accepted their locus standi to represent the suffering masses and passed guidelines and orders that greatly ameliorated the conditions of these people.

Public interest litigation acquired a new dimension- namely that of 'Epistolary Jurisdiction' with the decision in the case of Sunil Batra vs Delhi Administration, It was initiated by a letter that was written by a prisoner lodged in jail to a Judge of the Supreme Court. The prisoner complained of a brutal assault committed by a Head Warder on another prisoner. The Court treated that letter as a writ petition.

In the case of Municipal Council, Ratlam v. Vardichand, the Court recognized the locus standi of a group of citizens who sought directions against the local Municipal Council for removal of open drains that caused stench as well as diseases.

In Parmanand Katara vs. Union of India, the Supreme Court accepted an application by an advocate that highlighted a news item titled "Law Helps the Injured to Die" published in a national daily, The Hindustan Times. The petitioner brought to light the difficulties faced by persons injured in road and other accidents in availing urgent and life-saving medical treatment, since many hospitals and doctors refused to treat them unless certain procedural formalities were completed in these medico-legal cases. The Supreme Court directed medical establishments to provide instant medical aid to such injured people, notwithstanding the formalities to be followed under the procedural criminal law.

The unique model of public interest litigation that has evolved in India not only looks at issues like consumer protection, gender justice, prevention of environmental pollution and ecological destruction, it is also directed towards finding social and political space for the disadvantaged and other vulnerable groups in society. The Courts have given decisions in cases pertaining to different kinds of entitlements and protections such as the availability of food, access to clean air, safe working conditions, political representation, affirmative action, anti-discrimination measures and the regulation of prison conditions among others. 

In the realm of environmental protection, many of the leading decisions have been given in actions brought by renowned environmentalist M.C. Mehta. He has been a tireless campaigner in this area and his petitions have resulted in orders like - placing strict liability for the leak of Oleum gas from a factory in New Delhi, directions to check pollution in and around the Ganges river, the relocation of hazardous industries from the municipal limits of Delhi, directions to state agencies to check pollution in the vicinity of the Taj Mahal and several afforestation measures. A prominent decision was made in a petition that raised the problem of extensive vehicular air pollution in Delhi. 

The Court was faced with considerable statistical evidence of increasing levels of hazardous emissions on account of the use of diesel as a fuel by commercial vehicles. The Supreme Court decided to make a decisive intervention in this matter and ordered government-run buses to shift to the use of Compressed Natural Gas (CNG), an environment-friendly fuel. This was followed some time later by another order that required privately-run 'autorickshaws' (three-wheeler vehicles which meet local transportational needs) to shift to the use of CNG. At the time, this decision was criticized as an unwarranted intrusion into the functions of the pollution control authorities, but it has now come to be widely acknowledged that it is only because of this judicial intervention that air pollution in Delhi has been checked to a substantial extent. Another crucial intervention was made in Council for Environment Legal Action v. Union of India, wherein a registered NGO had sought directions from the Supreme Court in order to tackle ecological degradation in coastal areas. In recent years, the Supreme Court has taken on the mantle of monitoring forest conservation measures all over India, and a special 'Green bench' has been constituted to give directions to the concerned governmental agencies. 

An important step in the area of gender justice was the decision in Vishakha vs. State of Rajasthan. The petition in that case originated from the gang-rape of a grassroots social worker. In that opinion, the Court invoked the text of the Convention for the Elimination of all forms of Discrimination Against Women (CEDAW) and framed guidelines for establishing redressal mechanisms to tackle sexual harassment of women at workplaces. Though the decision has come under considerable criticism for encroaching into the domain of the legislature, the fact remains that till date the legislature has not enacted any law on the point. It must be remembered that meaningful social change, like any sustained transformation, demands a long-term engagement. Even though a particular petition may fail to secure relief in a wholesome manner or be slow in its implementation, litigation is nevertheless an important step towards systemic reforms.

A recent example of this approach was the decision in People's Union for Civil Liberties vs. Union of India, where the Court sought to ensure compliance with the policy of supplying mid-day meals in government-run primary schools. The mid-day meal scheme had been launched with much fanfare a few years ago with the multiple objectives of encouraging the enrolment of children from low-income backgrounds in schools and also ensuring that they received adequate nutrition. However, there had been widespread reports of problems in the implementation of this scheme such as the pilferage of food grains. As a response to the same, the Supreme Court issued orders to the concerned governmental authorities in all States and Union Territories, while giving elaborate directions about the proper publicity and implementation of the said scheme.

5.3 Judicial Review and Public Interest Litigation (PIL)

Judicial Review means the power of judiciary to pronounce upon the constitutional validity of the acts of public authorities, both executive and legislature. In any democratic society, judicial review is the soul of the system because without it democracy and the rule of law cannot be maintained. Judicial review in India is an integral part of the Constitution and constitutes the "basic structure" of it. The whole law of judicial review has been developed by judges on the facts of each basis. Consequently, the right of seeking judicial review depends on the facts of each individual case; however there cannot be a review of an abstract proposition of law.

Though 'judicial review' does not find mention in our Constitution, this power has been derived by the judiciary from various provisions. Firstly, judiciary power to interpret the Constitutional and especially the limits on Fundamental Rights vis-a-vis Article13(2) suggests that any law contravening the fundamental rights would be declared void. It is the duty of the Supreme Court to safeguard the fundamental rights of people and thus it is invested with the power of judicial review under Article 32 and to interpret the Constitution.

The Supreme Court's power of judicial review extends to constitutional amendments. However, constitutional amendments review by judiciary in relation to fundamental rights and its legal validity has been a contentious political issue. Parliament can amend the constitution under Article 368 but such amendments should not take away or violate fundamental rights and any law made in contravention with this rule shall be void (Article-13). Before the Golakhnath case 1967 the courts held that a constitutional amendment is not law within the meaning of Article 13 and hence, would not be held void if it violated any fundamental right. In Golakhnath case it was settled that

1. All amendments be law under Article 13(3)
2. Fundamental rights are transcendental and immutable, so cannot be amended, nonetheless to amend fundamental rights a new constitutional assembly needs to be convened, and 
3. Constitutional amendments is ordinary legislative power.

In 1971, Parliament by the 24th constitutional amendment , reversed the Golakhnath judgement by declaring constitutional amendments made under Article 368, not to be as 'law' within the meaning of Article 13, and the validity of the constitutional amendments act shall not be open to question on the ground that it takes away or affects fundamental rights under Art 368(3). In 1972, the Parliament passed the 25th constitutional amendment act allowing the legislature to encroach on fundamental rights if it was said to be done pursuant to giving effect to the directive principles of state policy. The 28th amendments act ended the recognition granted to former rulers of Indian state and their privy purses were abolished. In the famous Keshavananda Bharati case, 1973 the Court held that the Parliament could amend even the fundamental rights, but it was not competent to alter the 'basic structure' or 'framework' of the constitution. The 42nd amendment act 1976 declared that the Article 368 was not subject to judicial review by inserting clause(4) and (5) in Article 368. However in 1980 in Minerva Mills case, the Court struck down clauses (4) and (5) from article 368 and maintained that 'judicial review is the basic feature of the Indian Constitution system which cannot be taken away even by amending the constitution’. The Supreme Court, since then has been defining the 'basic structure' case by case.

5.4 The place of 'Judicial Review'

In post-independence India, the inclusion of explicit provisions for 'judicial review' were necessary in order to give effect to the individual and group rights guaranteed in the text of the Constitution. Dr. B.R. Ambedkar, who chaired the drafting committee of our Constituent Assembly, had described the provision related to the same as the 'heart of the Constitution'. Article 13(2) of the Constitution of India prescribes that the Union or the States shall not make any law that takes away or abridges any of the fundamental rights, and any law made in contravention of the aforementioned mandate shall, to the extent of the contravention, be void.

While judicial review over administrative action has evolved on the lines of common law doctrines such as 'proportionality', 'legitimate expectation', 'reasonableness' and principles of natural justice, the Supreme Court of India and the various High Courts were given the power to rule on the constitutionality of legislative as well as administrative actions. In most cases, the power of judicial review is exercised to protect and enforce the fundamental rights guaranteed in Part III of the Constitution. The higher courts are also approached to rule on questions of legislative competence, mostly in the context of Centre-State relations since Article 246 of the Constitution read with the 7th schedule, contemplates a clear demarcation as well as a zone of intersection between the law-making powers of the Union Parliament and the various State Legislatures. Hence the scope of judicial review before Indian courts has evolved in three dimensions -

1. To ensure fairness in administrative action,
2. To protect the constitutionally guaranteed fundamental rights of citizens, and
3. To rule on questions of legislative competence between the centre and the states.

The power of the Supreme Court of India to enforce these fundamental rights is derived from Article 32 of the Constitution. It gives citizens the right to directly approach the Supreme Court for seeking remedies against the violation of these fundamental rights. This entitlement to constitutional remedies is itself a fundamental right and can be enforced in the form of writs evolved in common law -

1. Habeas Corpus (to direct the release of a person detained unlawfully),
2. Mandamus (to direct a public authority to do its duty),
3. Quo Warranto (to direct a person to vacate an office assumed wrongfully),
4. Prohibition (to prohibit a lower court from proceeding on a case), and
5. Certiorari (power of the higher court to remove a proceeding from a lower court and bring it before itself).

Besides the Supreme Court, the High Courts located in the various States are also designated as constitutional courts and Article 226 permits citizens to file similar writs before the High Courts. With the advent of Public Interest Litigation (PIL) in recent decades, Article 32 has been creatively interpreted to shape innovative remedies such as a 'continuing mandamus' for ensuring that executive agencies comply with judicial directions. In this category of litigation, judges have also imported private law remedies such as 'injunctions' and 'stay orders' into what are essentially public law-related matters. Successful challenges against statutory provisions result in reliefs such as the striking down of statutes or even reading down of statutes, the latter implying that courts reject a particular approach to the interpretation of a statutory provision rather than rejecting the provision in its entirety.

Beginning with the first few instances in the late-1970s, the category of Public Interest Litigation (PIL) has come to be associated with its own 'people-friendly' procedures. The foremost change came in the form of the dilution of the requirement of 'locus standi' for initiating proceedings. Since the intent was to improve access to justice for those who were otherwise too poor to move the courts or were unaware of their legal entitlements, the Court allowed actions to be brought on their behalf by social activists and lawyers.

In numerous instances, the Court took suo motu cognizance of matters involving the abuse of prisoners, bonded labourers and inmates of mental institutions, through letters addressed to sitting judges. This practice of initiating proceedings on the basis of letters has now been streamlined and has come to be described as 'epistolary jurisdiction'.

In Public Interest Litigations (PIL), the nature of proceedings itself does not exactly fit into the accepted common-law framework of adversarial litigation. The courtroom dynamics are substantially different from ordinary civil or criminal appeals. While an adversarial environment may prevail in cases where actions are brought to highlight  administrative apathy or the government's condonation of abusive practices, in most public interest related litigation, the judges take on a far more active role in the literal sense as well by posing questions to the parties as well as exploring solutions. Especially in actions seeking directions for ensuring governmental accountability or environmental protection, the orientation of the proceedings is usually more akin to collective problem-solving rather than an acrimonious contest between the counsels. Since these matters are filed straightaway at the level of the Supreme Court or the High Court, the parties do not have a meaningful opportunity to present evidence on record before the start of the court proceeding. To overcome this problem, our Courts have developed the practice of appointing 'fact-finding commissions' on a case by-case basis which are deputed to inquire into the subject-matter of the case and report back to the Court. These commissions usually consist of experts in the concerned fields or practicing lawyers. In matters involving complex legal considerations, the Courts also seek the services of senior counsels by appointing them as amicus curiae on a case-by-case basis.

CONSTITUTIONAL REMEDIES - ARTICLE 32

A writ means an order, a warrant or anything that is issued under an authority. The Supreme Court's jurisdiction to issue writs is mentioned in Article 32 of the Indian Constitution. Article 32(3) confers the power to parliament to make law empowering any court to issue these writs. But this power has not been used and only Supreme Court by Article 32 (2) and High Courts (Article 226) can issue writs. However the main difference is that a Supreme Court can issue a writ only if fundamental rights have been violated whereas a High Court can issue a writ when any of the rights have been violated. Hence it is said that the powers of a High Court to issue a writ are more wide-ranging than the powers of the Supreme Court. The various types of writs are

Writ of Habeas Corpus

Habeas corpus literally means 'you may have the body'. It is the most valuable writ for personal liberty and is a remedy available to a person who has been confined without legal justification. The writ of habeas corpus enables the courts to require the authority to produce the person before the court.  It provides immediate relief from unlawful detention whether in prison or private custody.

Writ of Certiorari

If any lower court or a tribunal gives its decision but based on wrong jurisdiction, the aggrieved party can petition the court to issue a writ of certiorari. The writ of certiorari issued to subordinate judicial or quasi- judicial body when they act:

1. Without or in excess of jurisdiction;
2. In violation of the prescribed procedure;
3. In contravention of principles of natural justice;
4. Resulting in an error of law apparent on the face of record. 

Writ of Quo Warranto

The term Quo-Warranto literally means "by what warrants (rights) ?" It is a writ issued with a view to restraining a person from acting in a public office to which he is not entitled. Quo Warranto writ is issued against a person who occupies a public office in spite of not possessing the required qualifications or suffering from a disqualification. It is issued to restrain the authority or candidate from discharging the functions of public office. 

A writ of quo-warranto is to be issued when:

1. The office is public and of a substantive nature;
2. The office is created by the State or by the Constitution itself; and
3. The respondent must have asserted his claim to the office.

Under the authority provided by this writ the court can also declare an office to be vacant.

Writ of Prohibition

A writ of prohibition is a writ directing a subordinate to stop doing something that they may not do, according to law, but are doing. This writ is normally issued by a superior court to the lower court asking it not to proceed with a case which does not fall under its jurisdiction. The writ lies in both for access of jurisdiction or absence of jurisdiction. It is generally issued before the trial of the case or during the pendency of the proceeding but before the order is made.

Writ of Mandamus 

Mandamus literally means a command. In case a public authority is either not doing what he is supposed to do or is doing something which he is not supposed to a writ of Mandamus can be issued by the Court instructing the public authority to either act in a specific manner or not act in a specific manner. It must be noted that a writ of mandamus or command may not be issued against the Indian President or Governor.

 

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