The Union Judiciary - The Supreme

Court (Articles 124-147)

• Chapter IV under Part V of the constitution
(Union) deals with The Union Judiciary. The
constitution and jurisdiction of Supreme Court is
stated in detail from articles 124-147. Unlike the
other two branches, executive and legislature, in
India Judiciary is integrated. This means that even
though there may be High Courts in states, the
law declared by the Supreme Court shall be
binding on all courts within the territory of India
(Article 141). Now let’s look into the details of
each article dealing with the Union Judiciary.
• Article 124: Establishment and Constitution of
Supreme Court
• Appointment of Judges, Not more than seven
judges, unless prescribed by the parliament for
more judges.
• Every Judge of the Supreme Court shall be
appointed by the President by warrant under his
hand and seal after consultation with such of the
Judges of the Supreme Court and of the High
Courts in the States as the President may deem
necessary
• Article 125: Salaries, etc., of Judges
• There shall be paid to the Judges of the
Supreme 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 by the parliament
• Article 126: Appointment of acting Chief
Justice
• When the office of Chief Justice of India is
vacant or when the 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 127: Appointment of ad hoc Judges
• (1) If at any time there should not be a quorum of the
Judges of the Supreme Court available to hold or continue
any session of the Court, the Chief Justice of India may,
with the previous consent of the President and after
consultation with the Chief Justice of the High Court
concerned.
(2) It shall be the duty of the Judge who has been so
designated, in priority to other duties of his office to attend
the sittings of the Supreme Court at the time and for the
period for which his attendance is required, and while so
attending he shall have all the jurisdiction, powers and
privileges, and shall discharge the duties, of a Judge of the
Supreme Court.
• Article 128: Attendance of retired Judges at sittings of the
Supreme Court
• Notwithstanding anything in this Chapter, the Chief Justice of
India may at any time, with the previous consent of the
President, request any person who as held the office of a Judge
of the Supreme Court or of the Federal Court or who has held
the office of a Judge of a High Court and is duly qualified for
appointment as a Judge of the Supreme Court to sit and act as
a Judge of the Supreme Court, 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 Court.
• Article 129: Supreme Court to be a court of
record
• The Supreme 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 130: Seat of Supreme Court
• The Supreme Court shall sit in Delhi or in such
other place or places, as the Chief Justice of India
may, with the approval of the President, from time
to time, appoint.
• Article 131: Original jurisdiction of the
Supreme Court
• Subject to the provisions of this Constitution, the
Supreme Court shall, to the exclusion of any other
court, have original jurisdiction in any dispute –
(a) between the Government of India and one or
mor e Sta tes ; or
(b) between the Government of India and any
State of States on one side and one or more other
States on the other; or
(c) between two or more States.
• Article 132: Appellate jurisdiction of Supreme
Court in appeals from High Court in certain cases
• Article 133: Appellate jurisdiction of Supreme
Court in appeals from High Courts in regard to
civil matters
• Article 134: Appellate jurisdiction of Supreme
Court in regard to criminal matters
• Article 134A: Certificate for appeal to the
Supreme Court
• Article 135: Jurisdiction and powers of the
Federal Court under existing law to be
exercisable by the Supreme Court
• Article 136: Special leave to appeal by the
Supreme Court
• Article 137: Review of judgements or orders
by the Supreme Court
• Article 138: Enlargement of the jurisdiction of
the Supreme Court
• Article 139: Conferment on the Supreme Court of
powers to issue certain writs
• Article 139A: Transfer of certain cases
• Article 140: Ancillary powers of Supreme Court
• Article 141: Law declared by Supreme Court to
be binding on all courts
• Article 142: Enforcement of decrees and orders of
Supreme Court and orders as to discovery, etc.
• Article 143: Power of President to consult
Supreme Court
• Article 144: Civil and judicial authorities to act
in aid of the Supreme Court
• Article 145: Rules of Court, etc.
• Article 146: Officers and servants and the
expenses of the Supreme Court
• Article 147: Interpretation
 Constitution and judiciary

• The judiciary is the final arbiter of the constitution. Its

duty (mandated by the constitution) is to act as a
watchdog, preventing any legislative or executive act
from overstepping constitutional bounds. The judiciary
protects the fundamental rights of the people (enshrined
in the constitution) from infringement by any state
body, and balances the conflicting exercise of power
between the central government and a state (or states).
• The courts are expected to remain unaffected by
pressure exerted by other branches of the state, citizens
or interest groups. An independent judiciary has been
held as a basic feature of the constitution, which cannot
be changed by the legislature or the executive.
 Judicial review

• Judicial review was adopted by the

constitution of India from judicial review in
the United States. In the Indian
constitution, judicial review is dealt with
in Article 13. The constitution is the supreme
power of the nation, and governs all laws.
According to Article 13,
• Flexibility
“ The Indian constitution is first and foremost a social document, and
is aided by its Parts III & IV (Fundamental Rights & Directive
Principles of State Policy, respectively) acting together, as its chief
instruments and its conscience, in realising the goals set by it for all
the people.“
The constitution has deliberately been worded in generalities (not
in vague terms) to ensure its flexibility, said that a constitution's
"great outlines should be marked, its important objects designated,
and the minor ingredients which compose those objects be
deduced from the nature of the objects themselves.” A document
"intended to endure for ages to come", it must be interpreted not
only based on the intention and understanding of its framers, but
in the existing social and political context.
• The "right to life" guaranteed under Article
21 has been expanded to include a number of
human rights, including the right to a speedy
trial, the right to water; the right to earn a
livelihood, the right to health, and the right to
education.
• Black’s Law Dictionary defines judicial activism as the doctrine where
“judges allow their personal views about public policy, among other
factors, to guide their decisions.” The concept of judicial activism is unique
to common law countries as it is an extension of the common law mandate
of judge made law. The question that this paper seeks to address is
whether judicial activism has a positive effect on society? The landmark
Kesavananda Bharti case is the first example of the court extending its
powers of interpretation to such an extent that it crosses the line between
traditional function and judicial activism. This paper discusses landmark
judgments and shows how courts have expanded its powers over the years.
The author supports the doctrine of judicial activism however, she believes
that it should be exercised within a limited scope.
 Judicial Activism
• The term 'judicial activism' refers to the action of the courts
beyond the power of judicial review.
• In short, judicial activism means the Supreme Court and other
lower courts become activists and compel the authority to act
and sometimes also direct the government regarding policies
and also matters of administration.
• Judicial activism has arisen mainly due to the failure of the
executive and legislatures to act effectively and to deliver the
goods in just manner.
• Judicial activism in India acquired importance due to public
interest litigation. It is not defined in any statute or act.
• It has provided an opportunity to citizens, social groups,
consumer rights activists etc., easier access to law and
introduced a public interest perspective.
• Judicial activism has played a commendable role in protecting
and expanding the scope of fundamental rights. Some of the
rights recognized through judicial activism are as follows:
• -Right to live with Human Dignity
• -Right to Livelihood
• -Right to Shelter
• - Right to Privacy
• - Sexual harassment of working women: violative of Art 14
and 21.
• - Right to Health & Medical Aid
• Right to live in a Pollution Free Environment
• - Ban on Smoking In Public Places
• - Compensation for Violation of Article 21
• - Right of Prisoners
• -nullifying section 66A of IT ACT
 Judicial Activism in India: Origins,
Meaning, Causes and Course
• Origins:
• Its emergence can be traced back to 1893, when Justice Mahmood of
Allahabad High Court delivered a dissenting judgement.
• It was a case of an under trial who could not afford to engage a lawyer,
So the question was whether the court could decide his case by merely
looking his papers, Justice Mahmood held that the pre-condition of the
case being “heard” would be fulfilled only when somebody speaks.
• Meaning:
• As to its meaning, Judicial Activism is not a distinctly separate concept
from usual judicial activities. The word ‘activism’ means “being
active”, ‘doing things with decision’ and activist is the ‘one’ who
favours intensified activities. Justice Krishna Iyer observed ‘every
judge is an activist either on the forward gear or on the reverse’.
• Judicial policy making can be either an activity in support
of legislative and executive policy choices or in
opposition to them. But the latter one is usually referred
to as judicial activism. The essence of true judicial
activism is the rendering of decision which is in tune with
the temper and tempo of the times.
• Activism in judicial policy making furthers the cause of
social change or articulates concepts such as liberty,
equality or justice. It has to be an arm of the social
revolution. An activist judge activates the legal
mechanism and makes it play a vital role in socio-
economic process.
• Causes of Judicial Activism:
• The following trends were the cause for the emergence of
judicial activism —
• expansion of rights of hearing in the administrative
process, excessive delegation without limitation,
• expansion of judicial review over administration,
promotion of open government, indiscriminate exercise of
contempt power, exercise of jurisdiction when non-exist;
over extending the standard rules of interpretation in its
search to achieve economic, social and educational
objectives; and passing of orders which are unworkable.
• Course of Judicial Activism:
• In the first decade of independence, activism on part of the
judiciary was almost nil with political stalwarts running the
executive and the parliament functioning with great
enthusiasm, judiciary went along with the executive. In the 50s
through half of the 70s, the apex court wholly held a judicial
and structural view of the constitution.
• In the famous Keshavananda Bharti case, two years before the
declaration of emergency, the Supreme Court declared that the
Executive had no right to tamper with the Constitution and
alter its fundamental features. But it could not avert the
emergency declared by Mrs. Gandhi and it was only at the end
of it that the apex court and the lower courts began to
continuously intervene in executive as well as legislative areas.
• The first major case of judicial activism through social
action litigation was the Bihar under trials case.
• In 1980 it came in the form of a writ petition under article
21, by some professors of law revealing the barbaric
conditions of detention in the Agra Protective Home,
followed by a case against Delhi Women’s Home filed by
a Delhi law faculty student and a social worker.
• Then three journalists filed a petition for the prohibition
of the prostitution trade in which women were bought and
sold as cattle.
• Taking cognisance of custody deaths Supreme Court ordered
the police not to handcuff a man arrested purely on suspicion,
• not to take a woman to the police station after dusk.
• High Court judges visited the prisons to check the living
conditions of prisoners, in the year 1993, in just a month the
apex court proclaimed judgment protecting the rights of
innocents held in Hazaratbal mosque in Srinagar,
• defining the constitutional powers of the Chief Election
Commissioner,
• threatening multi crore rupees industries with closure if they
continued to pollute the Ganga and Taj Mahal and brought all
government and semi government bodies under the purview of
the Consumer Protection Act.
• The controversial 27% reservation of jobs in Central
Government and public sector undertakings was referred
to the Supreme Court by the Narasimha Rao Government.
The court decision favoured 49% of jobs for backward
castes and class but the ‘creamy layers; were exempted
from this reservation.
• Similarly the court put a curb on the operation of
capitation fee in colleges in Karnataka.
• Quality Life
• In CERC v. Union of India the Supreme Court observed “The right
to life with human dignity encompasses within its fold, some of the
finer facets of human civilization which makes life worth
living.” This justification was one of the many used by the Supreme
Court in the Ramlila Maidan case in which the court held that right
to sleep is a part of right to life under Article 21. This interpretation
by the court shows how the court has covered almost every aspect of
life in its expansion of Article 21. The court was however careful to
state that by this interpretation they only impose a negative duty on
the state to not infringe on a person’s right to sleep and not a
positive duty to ensure that every citizen can sleep.
• This right to a quality life being a part of right to life is a blanket
right that covers several other rights, such as the right to medical
care, minimum income, privacy, education etc.
• “Right to live guarantee in any civilised society
implies the right to food, water, decent
environment, education, medical care and
shelter. These are basic human rights known
to any civilised society. All civil, political, social
and cultural rights enshrined in the Universal
Declaration of Human Rights and Convention
or under the Constitution of India cannot be
exercised without these basic human rights”