Organisation of Judicial System in Pre and Post Constitutional Era in India PDF

CHAPTER-2
ORGANISATION OF JUDICIAL SYSTEM IN PRE AND

POST CONSTITUTIONAL ERA IN INDIA
I. Introduction
The judicial system of a country at a given time is not the

creation of one man or of one day; it represents the cumulative fruit of
the endeavour, experience, thoughtful planning and patient labour of
a large number of people through generation, i Legal history is one of
the major divisions of legal science, concerned in its general aspect
with the origins and development of legal institutions, systems,
principles and thought about law from the most ancient times.2 The
roots of the present judicial system lie deeply buried in the past.
Hence to comprehend, understand and appreciate the present judicial
system adequately, it is necessary, therefore, to acquire background
knowledge of the course of its growth and development. Thus,
historical perspective of judicial system in India can be studied
properly under two heads viz. before independence of India, which
includes periods i.e. Vedic period. Mediaeval Period, British Period and
Post-Independence Period.
II. Judicial System Prior to Independence
In fact, the subject judicial system cannot be studied properly,

without understanding and comprehending the existing legal system
of ancient India, namely, the Vedic period. Mediaeval Period and
British period. The present growth and evolution of judicial system
cannot be explained properly without keeping into the past which is
said to be the roots of present civilization and legal system. It is an
admitted fact that ancient customs and conventions of the past have
contributed a lot in the development of our present legal system.
There is an old saying that the present is the outcome of the past and
1 M.P. J a i n Outlines of Indian Legal History 8s Constitutional History, 1 (2012).

^ M .Walker David, Oxford Companion to Law, 7 4 4 - 7 4 5 (1980)
22
without proper and adequate historical background, it may be quite
difficult and impossible to have better and proper understanding
about the existing judicial system. In order to have better
understanding of growth and development of legal system in ancient
India, one has to concentrate mainly on the British period as present
judicial system is what the Britishers have created, it is necessary to
describe the developments in relation to legal system during British
period more adequately and comprehensively. But it has to be
understood that in field of law and justice, the British period
constituted fundamental break from our past traditions and practices
of the hoary past.^
(i) Vedic Period
India has the oldest judiciary in the world. No other judicial

system has a more ancient pedigree. Indian jurisprudence was found
on the rule of law; the King himself was subject to the law; that
arbitrary power was unknown to Indian political theory and
jurisprudence and the King's right to govern was subject to the
fulfillment of duties the breach of which resulted in forfeiture of
Kingship; that the judges were independent and subject only to the
law; that ancient India had the highest standard of any nation of
antiquity as regards the ability, learning, integrity, impartiality, and
independence of the judiciary, and these standards have not been
surpassed till today; that the Indian judiciary consisted of a hierarchy
of judges with the Court of the Chief Justice (Praadvivaka) at the top;
each highest Court being invested with the power to review the
decision of the Court below; that disputes were decided essentially in
accordance with the same principles of natural justice which govern
the judicial process in the modern State today; that the rules of
procedure and evidence were similar to those followed today; that
supernatural modes of proof like the ordeal were discharge; that in
criminal trials the accused could not be punished unless his guilty
3 Supra n.l at 2.
23
was proved according to law; that in civil cases the trial consisted of
four stages like any modern trial-plaint, reply, hearing, and decree;
that such doctrines as res judicate (prang nyaya) were familiar to
Indian jurisprudence; that all trial civil or criminal, were heard by a
Bench of several judges and rarely by a judge sitting singly; that the
decrees of all courts except the King were subject to appeal or review
according to fixed principles; that the fundamental duty of the Court
was to do justice " without favour or fear".
A. Judiciary in Ancient India
According to the Artha-Shastra of Kautilya, who is generally

recognised as the Prime Minister of the first Maurya Emperor (322-
298B.C.), the realm was divided into administrative called Sthaniya,
Dronamukha, Kharvatika and Sangrahana (the ancient equivalents of
the modern districts, tehsils, and Parganas). Sthaniya was a fortress
established in the Centre of eight hundred villages, a dronamukha in
the midst of 400 villages, a kharvatika in the midst of 200 villages and
a sangrahana in the Centre of ten villages. Law Courts were
established in each sangrahana and also at the meeting places of
districts (Janapadasandhishu). The court consisted of three jurists
(dharamastha) and three ministers (amatya). The great jurists, Manu,
Yajn-valkya, Katyayana, Brishaspati and others and in later times
commentators like Vachaspati Misra and others describes in detail the
judicial system and legal procedure which prevailed in Indian from
ancient times till the close of the Middle Ages.
B. Hierarchy of Courts in Ancient India
According to Brihaspati Smiriti, there was a hierarchy of courts

in Ancient India beginning with the family courts and ending with the
King. The lowest was the family arbitrator. The next higher court was
that of the judge; the next of the Chief Justice who was called
Praadivivaka, or adhyaksha; and at the top was the King's Court. In
Administration of Justice we can follow these steps:-
24
(a) Constitution of Courts
During the ancient Hindu Period, the King was regarded as

"Fountain-Head of Justice" and was respected as the Lord of
Dharma whose main duty was to administer justice to his subjects in
his kingdom.4 The King's Court was the highest court of appeal and
also had original jurisdiction in cases of vital importance to the state.5
For the administration of justice he was assisted and advised by the
learned Brahmins, the Chief Justice and other judges, ministers,
elders and representatives of the trading community. Next to the court
of King was the court of the Chief Justice {Praadvivaka). Apart from
the Chief Justice, the court consisted of a board of judges to assist
him. All the judges were from three upper castes, preferably
Brahmins, who were generally learned in law. Sometimes some of
these judges constituted separate tribunals having specified territorial
jurisdiction. According to Brihaspati, there were four types of
courts/Tribunals, namely stationary, movable courts and
commissions under the king's presidency.
Justice was administered at village level by a local village

council, known as Kulani which is similar to modem panchayats,
consisted of a board of five or more members to disperse justice to
villagers.^ It was concerned with all matters relating to endowments,
irrigation, cultivable land, punishment of crime, etc. Village councils
dealt with simple civil and criminal cases. At a higher level in towns
and districts, the courts were presided over by the government officers
P.V. Kane, History of Dharmasastra, Vol. Ill, Chapter XI deals with Law and
Administration of Justice, 242-316 (1946), See also Supra n. 4, at 8.
Regarding the King's judicial jurisdiction, Kalidas in his Abhijnana
Shakuntalam, has referred to Dhana Mitra Case, Dhana Mitra was a wealthy
merchant who died in a shipwreck. The dispute relating to his property came
before the King which he transferred to his minister. The Minister passed an
order that the entire estate of the merchant be reverted to the King. Reversing
this decision King Dushyanta ordered an enquiry to be made-whether any of his
widows was expecting a child, and he was informêd that one of them was
pregnant. The King directed that the child after birth was entitled to the property
of the deceased.
S. Varadachariar, The Hindu Judicial System, 88 (1946).
25
under the authority of the King to administer justice. According to
Brihaspati:
**First come the family arbitrators; the Judges are superior

to the families; the Chief Justice (Adhyaksha) is superior to the
Judges; the King is superior to all of them and this decision
becomes law."^
Criminal cases were ordinarily presented before the Central

Court or the courts held under the royal authority. The smaller
judicial assembly at the village level was allowed to hear only minor
criminal cases. According to Vachaspati Misra, "the decision of the
higher court was followed and respected by all the lower courts. As
such the King's decision was supreme".
One of the cardinal rules of the administration of justice in

Ancient India was that a single individual should not administer
justice. A Bench of two or more judges was always preferred to
administer justice. "No decision shall be given by a person singly",^ is
a formula found frequently repeated in the old texts. Thus Vasistha
says, "Let the King or his ministers (or the King taking counsel with
Brahmins) transact the business on the Bench."^ The King sitting in
his council heard the cases and administered justice.
(b) Institution of Lawyers
During ancient Hindu period, the institution of lawyers does not

exist as it exists today, but persons who were well versed in law
presented the cases before the court.
(c) Judicial Procedure
During the ancient Hindu period, the judicial procedure was

very elaborate. According to Brihaspati, the suit or trial [vyavahasa]
consisted of four parts; (i) the plaint (poorva-paksha); (ii) the reply
7 Supra n. 4, at 9.
8 ^ iT^j^fffîkf'^^/ Cited by Supra n. 2 1 , at 6 4 .
9 W i,'^/'plfî^^'<^^fd / id at. 6 5 .
26
(uttar); (iii) the trial and investigation of dispute by the court [kriyaa)
and (iv) the verdict or decision {nimaya)A^ Once the plaint is field
before the court it means that the plaintiff has submitted himself to
the jurisdiction of the court. The court after examination of the matter
and after satisfying itself issued order to the defendant to submit his
reply on the basis of allegations as alleged in the plaint and if the
defendant admitted the charges made against him in the plaint, the
duty of the court was to decide the case. Where the defendant
contested the case before the court, it was the duty of the court to
provide full opportunity to both the parties to prove their cases. After
the trial was over the final decision was given by the court, ii During
the course of proceedings, both parties were required to prove their
case by producing evidence. Ordinarily, there were three main sources
of evidence, namely, documents, witnesses and the possession of
incriminating objects.
In criminal cases, sometimes circumstantial evidence was

sufficient to punish the criminal or to acquit the accused. The court
generally, allowed the accused to produce any witness in his defence
before the court, if he feels that he is innocent. 12 All the witness were
required to take an oath before the court. Conviction was only ordered
when complete procedure has been followed. Strict action was taken
against the witnesses for making false statements before the court.
(d) Appointment of Judges and Judicial Standard
As per the text available caste considerations played dominant

role in the appointment of judges i.e. Chief Justice and the other
judges. Almost all the law books dealing with the ancient judicial
systems mention that preferably a Brahmin must be appointed a Chief
judge or judge. i3 Thus only persons who were highly qualified and
learned in law were considered for appointment by the king as judges.
10 Supra n. 19 at 3 7 9 - 4 1 0 .
11 V.D. Kulshrestha's, L a n d m a r k s in Indian Legal a n d Constitutional History 10
(2009).
12 / d a t l l .
13 Supra n. 4 at 2 7 2 - 7 5 .
27
The women unlike today were not considered for appoint as judges,
which was main drawback in the ancient judicial system.
The standards laid down for judges and Magistrates were very
high. Judges were required to take the oath of impartially while
deciding cases between citizens. The judges were also required to
maintain integrity while functioning as judge. According to
Brihaspati, "A judge should decide cases without consideration of
personal gain or prejudice or any kind of bias (now a days this term is
used as Vithout fear or favour') and his decision should be in
accordance with the procedure prescribed by the texts". A judge who
performs his judicial duties in this manner achieves the same
spiritual merits as a person performing a yayna. ^'^ Thus, judges were
also supposed to maintain honesty throughout their service carves
and dishonesty was considered as the most reprehensible crime, is
(e) Trial by Jury
The jury system thought it was in existence in ancient Hindu

period yet it was not in the same form as it is understood in modern
times. 16 The members of the community assisted in the
administration of justice. But the administration by justice was done
by the presiding judge and not by the jury.
(f) Trial by Ordeal
In fact, it was a method to determine the guilt of a person. Trial

by ordeal was considered to be valid method of proof. But this method
had a great drawback also as sometimes a person proved his
innocence by death as the ordeal being very painful and dangerous.
Various kinds of ordeal which were in existence during ancient Hindu
period are ordeal of balance; ordeal of fire; ordeal by water; ordeal by
1^ S.S. D h a v a n , Indian J u r i s p r u d e n c e , Vol. VIII (1963) Journal of the National

Academy of Administration, p. 2 2 .
15 Supra n. 11 a t 12.
16 Ibid.
28
poison; ordeal of lot; ordeal or rice grains and ordeal of fountain-
cheese. ^'^
(g) Crimes and Punishments
In ancient Hindu period punishment was considered to be a sort

of expiation which removed impurities from the evil doer and reformed
his character. The punishments served four main purposes, mainly to
meet the urge of the person who suffered, for revenge or retaliation as
deterrent and preventive measures, and for reformation or redemption
of the evil doer, is According to Manu, Yajnavalkya and Brihaspati,
mainly four methods of punishments were in practice i.e. by gentle
admonition, by severe reproof or reprieve, by fine and by corporal
punishments, and declare that these punishments may be inflicted
separately or together according to the nature of offence, time and
place, strength, age, conduct learning and monetary position of the
offender. ^^
Certain classes of persons were exempted from punishment

under the ancient criminal law in India. Certain Mitaksharaô states
that an old man over eighty, a boy below sixteen, women and persons
suffering from diseases are to be given half prayaschitta and sankha, a
child less than five commits no crime nor sin by any act and is not to
suffer any punishment nor to undergo any prayaschitta.'^^ Certain
smriti writers which prescribes that as general rule a Brahmin
offender was not to be sentenced to death or corporeal punishment for
any offence deserving a death sentence, but in such cases other
punishments were substituted. Katyayana and Kautilya was against
exempting Brahmins and stated, "Even a Brahmin deserves to be
17 / d a t l 3 .
'8 Supra n. 4 at 3 8 8 - 9 0 . Where there is no conflict between D h a r m a s a s t r a a n d
A r t h a s h a s t r a , both should be followed. In case of conflict whatever is stated in
D h a r m a s a s t r a should be followed. This w a s the rule of interpretation by c o u r t s
in ancient India.
19 Supra n. 11 a t 14.
20 Yajnavalkyasmriti, Vol. Ill, p. 2 4 3 .
21 Naradasmriti, Vol. IV, p. 8 5 . Section 82 of t h e Indian Penal Code provides t h a t
nothing is a n offence which done by a child u n d e r seven years of age.
29
killed if he is guilty of causing abortion if he be a thief of gold or if he
kills a Brahmin woman with a sharp weapon or if kills a chaste
woman."
Under the ancient criminal law, criminals were required to pay a

fine as well as to undergo corporeal punishment for their offence. In
adultery and rape cases, the punishment was awarded on the basis of
the caste considerations of the offender and of the woman.22 Henry
Maine, after studying the ancient western legal system made certain
generalization that, "the penal law of ancient communities is not the
law of crimes. It is the law of wrongs or torts, the English technical
term. Thus it can be inferred from the above discussion that ancient
Hindu judicial system was discriminatory in nature as far as the lower
castes were concerned. King's power and jurisdiction gradually
increased and extended throughout his Kingdom.
C. Delegation of Judicial Power by the King
As civilization advanced, the King's functions became more

numerous and he had less and less time to hear suits in person, and
was compelled to delegate more and more of his judicial function to
professional judges. Katyaynana says, "if due to pressure of work, the
King cannot hear suit in person he sould appoint as a judge a
Brahmin leartned in the Vadas"
The qualifications prescribed for a judge were very high.

According to Katyayana, "A judge should be austere and restrained,
impartial, temperament, steadfast. God-fearing, assiduous in his
duties, free from anger, leading a righteous life and good family.
D. Quality of the Judiciary
The foremost duty of a judge was integrity which included

impartiality and a total absence of bias or attachment. The concept of
integrity was given a very wide meaning and the judicial code of
integrity was very strict. Brihaspati says, "A judge should decide cases
Supra n. 11 at 15.
30
without any kind of personal bias; and his decision should be in
accordance with the procedure prescribed by the texts". A judge who
performs his judicial duties in this manner achieves the same
spiritual merit as a person performing a Yajna. Every Smriti
emphasizes the supreme importance of judicial integrity. Shukra-
nitisara says, "The judge appointed by the King should well versed in
procedure wise, of good character and temperament, soft in speech,
impartial to friend or foe, truthful, learned in law, active(not lazy), free
from anger, greed, or desire(for personal gain), and truthful.
E. Punishment for Corruption
Corruption was regarded as a heinous offence and all the

authorities are unanimous in prescribing the severest punishment on
a dishonest judge. Brihaspati says; "A judge should be banished from
the realm if he takes bribes and thereby perpetrates injustice and
betrays the confidence reposed in him by a trusting public. A corrupt
judge, a false witness, and the murderer of a Brahmin are in the same
class of criminal. Vishnu says; "The state should confiscate the entire
property of a judge who is corrupt". Judicial misconduct includes
conversing with litigants in private during the pendency of a trial.
Brihaspati says, "A judge or Chief Justice (Praadvivaka) who privately
converses with a party before the case has been decided (animite) is to
be punished like a corrupt judge.
(ii) Judicial System in Medieval India
The Muslim period marks the beginning of a new era in the legal
history of India. The judicial system of India during the mediaeval
Muslim period may therefore be divided and studied under two
separate periods:
A. The Sultanate of Delhi
B. The Mughal Empire
31
A. The Sultanate of Delhi
In Sultanate system the Sultan after ascending the throne of

Delhi and had very little time or opportunity to denote attention for
the administration of justice in the country. They did not touch the
Hindu personal laws. In order to understand the set-up of the judicial
machinery during the period covered by the Sultanas of Delhi i.e. from
1206 to 1526, it is necessary to have a brief account of the prevailing
administrative units. Thus a systematic classification and gradation of
the courts existed at the levels of administration.
(a) The Administration of Justice-Constitution of Courts
The Sultan being head of the State was the Supreme authority
to dispense with justice to his subjects. The Sultan exercised the
powers in three capacities namely as arbitrator in the disputes of his
subjects he administered of bureaucracy justice was administered
justice through the Diwan-e-Qaza; as head of bureaucracy justice was
administered through the Diwan-e-Mazalim; as the Commander-in-
Chief of force through military commanders who constituted Diwan-e-
Sfi/asat.23 It was exclusive prerogative of the king to execute a criminal
and the courts were required to seek his prior permission before
awarding the capital punishment. There were Courts at Central
Capital; in the Provinces; in the Districts; in the Parganas and at
Village level.
1) Central Capital
There were established six courts at the capital of the

Sultanate.24 Among these six courts, the King's Court was the highest
court of the realm. It was presided over by the Sultan and exercised
both original and appellate jurisdiction on all kinds of cases. The
Sultan was assisted by two reputed Muftis highly qualified in law. The
second courts were court of Diwan-e-Mazalim. It was the highest court
^3 Supra n. 11 at 2 1 .
^4 These six c o u r t s were in the following descending order; King's Court' Diwan-e-
Mazlim, Diwan-e-Risalat, S a d r e - J e h a n ' s Court, Chief J u s t i c ' s Court a n d Diwan-
e-Siyasat.
32
of appeal in criminal matters. The third court of Diwan-e-Risalat was
the highest court of appeal in civil matters. The forth court was the
court of Chief Justice (Quzi-ul-Quzat). He was the highest judicial
officer next to Sultan, and dealt with all kind of cases. The fifth court
was Sadre Jehan's Court. This court reduced the importance of the
Chief Justice Court and subsequently became more powerful. The
sixth court was the court of Diivan-e-Siyasat. It dealt with the cases of
rebels and those charged with high treason. Its main purpose was to
deal with criminal prosecutions. It was established by Muhammad-
bin-Tughlaq and continued upto 1351. Some Sultans like Balban and
Mohammad-Bin-Tughlaq25 set a high example of justice and were
highly respected and famous for their impartiality and independent
character during the Sultanate period.^^
2) Courts in Provinces
At the provincial level each province at its headquarters had
courts, namely, Adalat Nazimsubah, Adalat Qazi-e-Subah, Governor's
Bench (Nazim-e-Subah's Bench), Diwan-e-Subah and Sadre-e-Subah.'^'^
Adalat Nazim Subah was the highest court at the provincial
level. It was presided over by the Governor and exercised both original
and appellate jurisdiction. From his judgement an appeal lay to the
Central Court at Delhi. In exercise of appellate jurisdiction the
Governor used to sit in bench's. This type of court was known as
Governor's Bench (Nazim-e-Subah's Bench) court.^s
Adalat Quzi-e-Subah was the next court in order of gradation. It

was presided by the Chief Provincial Qazi. He was empowered to try
civil and criminal cases of any description to hear appeals from the
courts of District Quzis. Four officers, namely. Mufti, Pandit, Mohtasib
and Dadbak, were attached to this court.^9
25 Rajneesh K u m a r Patel, Administration of Justice in India, Ethics and

Accountability 39(2011).
26 Supra n. 11 at 22.
27 Ibid.
28 Ibid.
29 Id at 2 2 - 2 3 .
33
Diwan-e-Subah was another court in each province. It dealt with
the revenue matters and its decision was final in all cases concerning
land revenue. The Sadre-e-Subah was the Chief Ecclesiastical Officer
in the province. It was subordinate to Sadre Jahan'Court. The Court
was empowered to decide matters relating to grant of stipend and
lands etc.30
3) Courts at District Level
In each district (Sarkar), at the district headquarter, six courts

were established to deal with different matters.^^
The court of the District Qazi was empowered to hear all

original civil and criminal cases. It was presided over by the District
Qazi and was assisted in work by Mufti, Pandit, Mohatasib and
Dadbak. These persons were considered experts in their respective
field. The court of the Faujdar tried petty criminal cases concerning
security and suspected criminals. The court of Sadre was established
to deal with cases of grant of land and registration of land. For land
revenue cases the court of Amils was established in each district
(Sarkar). Further, Kotwals were authorised to petty criminal cases and
policy cases.32
B. Judicial System during Mughal Period
In India the Mughal period begins with the victory of Babar in

1526 over the last Lodi Sultan of Delhi. The Mughal were aware of the
fact that stability of kingdom depends upon the administration of
justice. A systematic gradation of courts, with well-defined powers of
the presiding judges, existed all over the kingdom.33
(a) The Imperial Capital

At Delhi, which was the capital (Darul Sultanate) of the Mughal
Emperors in India, three important courts were established.
30 Id at p. 2 3 .
31 The six c o u r t s were, namely, Qazi, D a d b a k s or Mir Adls, Faujdars, Sadre, Amils
a n d Kotwals.
3^ S.R. Myneni, Indian history, 303(2011).
33 B.S. J a i n , Administration of J u s t i c e in Seventeenth Century India, 81-88(1990).
34
1) Emperor's Courts
The Emperor's Court was the highest court of the empire. It was
presided over by the Emperor in person. He was the Supreme
authority and in him the entire executive, legislative, judicial and
military powers resided. The court had jurisdiction to hear original
civil and criminal cases. It was the highest court of appeal.^^ The king
normally attended to the ordinary cases in Darbar daily and important
cases requiring evidence, witnesses, the cross-examination, and
further investigation and deliberation on a fixed day in the week. The
king fixed different day for adjudicating disputes. For hearing appeals
king constituted a Bench comprising of Chief Justice {Qazi-ul-Qazat)
and the Qazis of the Chief Justice's Court.^s
2) Chief Sadar
The court of Chief Sadar was presided over by the Chief Justice
[Qazi-ul-Quzat]. He was appointed by King and worked during his
pleasure.36 The court had the power to try original, civil and criminal
cases, to hear appeals from the provincial courts. It was also required
to supervise the working of the provincial courts. Four officers
attached to the court were- Darogha-e-Adalat, Mufti, Mohtasib and Mir
Adl. The Chief Justice was considered the next important person, after
the Emperor, holding the highest office in the judiciary.
3) Diwan-e-Ala
The Chief Revenue Court was the third important court
established at Delhi. It was the highest court of appeal to decide
revenue cases. The court was presided over by the Diwan-e-Ala. Since
the judicial officials were appointed by the king and they were
accountable to him. Besides thee important courts, there were some
other lower courts in the capital.^7
34 J.N Sarkar, Mughal Administration, 72(1935).

35 Supra n. 11 at 26.
36 G.P. Tripathi, History of Courts and Legislation, 105(2009).
37 The other courts were court of Qazi of Delhi and the court of Qazi-e-Sarkar.
These courts used to move from one place to another place within the Capital.
35
(b) Appointment of Judges and Judicial Standard
The Chief Justice and other Judges were appointed by the

Emperor. There was a also a practice for appointing the Judges
directly from amongst the eminent lawyers. According to J a d u n a t h
Sarkar, "Men of high scholarship and reputed sanctity and integrity
were chosen for appointment". Judicial High Standards were kept for
the selection and working of the judges. It was Emperor Aurangzeb,
who ordered for the issuance of following instruction, "Be just, be
honest, be impartial. Hold the trials in the court house and the seat of
the Government. Do not accept presents from the people of the place
where you serve not attend entertainments given by anybody know
property (Faqr) to be your glory (Fakhr).
(iii) Judicial System during British Period
In order to study the present judicial system, one has to

concentrate mainly on the past or to have in depth knowledge about
the past legal history, unless one digs out the past properly, it is not
practically possible to understand the present. In fact our present
legal or judicial system is entirely based on the British legal system.
Tremendous growth and development of law has taken place during
the British period and our present judicial system is what the
Britishers have created. Thus keeping in view the contributions made
by the Britishers in the field of growth and development of judicial
system in India, it can be safely construed that our present judicial
system is directly outcome of the British Legal System.
As per the historical record the British came to India as traders,

in shape of a company to do business for sometimes. In December
1600, the company obtained its Charter from Queen Elizabeth. The
Charter dealt with the constitution, powers and privileges and vested
the management of the company to the Governor and 24 members
and this body was authorized to organize trading activities.^s in the
beginning, the administrative responsibility was devolved in the three
38 S.C.Tripathi, Indian Legal a n d Constitutional History, 16(2011).
36
presidency towns namely Calcutta, Madras and Bombay. At the same
time they were anxious to expand trade activities more and more in
the remaining territory of India. This aim of Britishers turned into
reality in 1765 when they got grant of Diwani.39 At the beginning there
were Company's Courts and Royal Courts. Initially who manned
judicial posts were not well qualified in law and they used to work
under the influence of executive. The lack of knowledge and training
on the one hand and dual system of courts having conflicting
jurisdiction on the other hand created many problems in the
dispensation of justice. These two factors forced Britishers for
unification of courts system in India and prescribed law was applied
by the unified courts. This was achieved in 1858 when East India
Company was abolished as far as governance of India was concerned.
And this object was practically realised in 1861 when Indian High
Courts Act was passed. After the established of High Courts, in place
of two set of courts, the English system of courts and procedure were
fully introduced in India. Further the codified laws were also made
applicable for adjudication of disputes. Thereafter in 1937 under the
provisions of Government of India Act, 1935 a Federal Court was of
created to hear appeals from the various High Courts.ô This situation
remained with Privy Council as the apex court for India"* ^ till the day
when Constitution of India came into operation. Thus, the Britishers
captured different places in India from different rulers and on different
dates and conditions.
A. The Judicial System Set-Up in Presidencies (1774-1861)
In the Presidency Towns of Bombay and Madras, the judicial

system established by the Charter of 1753 continued to operate much
longer than at Calcutta. In course of time, it was felt that the judicial
39 In 1765 the Diwani of Bengal, Bihar a n d Orissa w a s granted to t h e Company of

S h a h Alam (the then Mughal Emperor).
"•0 With the passage of time High C o u r t s were established at various places. From
t h e decisions of High C o u r t s appeal lay to Federal Court.
'î The Government of India Act, 1935 contained provision u n d e r Section 2 0 8 for
further appeal from the decision of Federal court to the Privy Council in
England.
37
system was inadequate to meet effectively the need of these two Towns
also. The populations, trade and commerce of these Towns had
increased considerably. ^2 Undoubtedly, the enforcement of the
Regulating Act, 1773 and the Settlement Act, 1781 had brought major
changes in the administration of justice of the Presidency of Calcutta,
but the judicial administration system of other Presidencies i.e.
Bombay and Madras remained as was provided by the Charter Act,
1773 and in these Presidencies the Courts of Requests were still
functioning.^^3 In those days due to acceleration in trade activities and
tremendous increase in population the major population the Mayor's
Court in these Presidency were found to be inadequate to cater to the
administer of justice. Moreover, the judges of Mayor's Court did not
have knowledge of law and a judicial mind to decide the complicated
question of law. Thus the Recorder's Court replaced Mayor's court at
these Presidencies."*"*
Each Recorder's Court consisted of a Mayor' three Aldermen and

a Recorder. The Recorder of this Court was to be a professional lawyer
having not less from five years' standing. His majesty was empowered
to appoint the Recorder of such Court and he was to perform the
functions of the President of the Court. Sir William Syer and Sir
Thomas Stranger were first Mayors of Madras and Bombay
Presidencies. The Recorder's Court was regarded as a 'Court of record'
and it was competent to exercise criminal, civil, equity and admiralty
jurisdiction. But, the Recorder's Court was not conferred the
jurisdiction in the revenue matters. Therefore, in the year 1800, the
British Parliament passed the Act authorizing the British Crown to
constitute a Supreme Court at Madras and later on also at Bombay in
the year 1823.
« Supra no. 1 at 101.

43 S.C. Tripathi, Indian Legal and Constitutional History, 31(2011),
44 Id at 3 2 .
38
(a) S u p r e m e Court in P r e s i d e n c i e s
The composition of Supreme Court established at each

Presidency w a s almost similar. It consisted of Chief J u s t i c e a n d three
Puisne (lower) j u d g e s appointed by t h e Crown.
(1) E s t a b l i s h m e n t of S u p r e m e Court at Calcutta
The e s t a b l i s h m e n t of S u p r e m e Court at Calcutta is a great step

forward in Indian Legal History. Section 13 of the Regulating Act,
1773 empowered t h e Crown to establish a S u p r e m e Court a t Calcutta.
Consequently, King George-III i s s u e d a C h a r t e r on March 2 6 , 1774 for
the e s t a b l i s h m e n t of a S u p r e m e Court (in t h e place of Mayor's Court)
at Calcutta. The C h a r t e r of 1774 laid down the provisions relating to
t h e a p p o i n t m e n t of t h e j u d g e s a n d t h e powers, jurisdiction and
functions of the S u p r e m e Court.'^s
1) Constitution
The S u p r e m e Court a t C a l c u t t a consisted of a Chief J u s t i c e a n d

three Puisne (lower) j u d g e s . They were appointed by the Crown. They
were to hold office d u r i n g t h e p l e a s u r e of the Crown. Only Barristers
having not less t h a n five y e a r s s t a n d i n g were qualified for the
a p p o i n t m e n t a s t h e j u d g e of the S u p r e m e Court.'*^
2) J u r i s d i c t i o n of t h e Court
The jurisdiction of the S u p r e m e Court at Calcutta m a y be

explained u n d e r t h e following h e a d s .
I. Civil J u r i s d i c t i o n
II. Criminal Jurisdiction
III. Admiralty J u r i s d i c t i o n
IV. Equity J u r i s d i c t i o n
V. Supervisory Jurisdiction
VI. Appeals
"^5 Rega Surya Rao, History of Courts, Legislatures a n d Legal Profession in India
(Legal a n d Constitutional History of India), 52 (2010).
46 Id at 5 3 .
39
I. Civil Jurisdiction
The civil jurisdiction of the court was of two kinds: (i) territorial
and (ii) personal with respect to the Presidency of Calcutta, the
Supreme Court had a territorial jurisdiction and therefore, civil
matters relating to all persons, arising within the Presidency of
Calcutta fell within the jurisdiction of the Supreme Court. ^7 it had
original jurisdiction to try all civil cases above the value of Rs. 500.
II. Criminal Jurisdiction
The Criminal jurisdiction of the Supreme Court extended to all

British subjects residing in Calcutta and within the territory of
Bengal, Bihar and Orissa. Only the British people and their servants
and persons employed with the Company were covered under this
jurisdiction.'^^ It had no jurisdiction over all the natives of Bengal,
Bihar and Orissa. It was not competent to try the Governor-General or
a member of Council for any offence except treason and felony.'*^ For
proper administration of criminal justice, it was to work as the court
of Oyer and Terminer and goal delivery, so
III. Admiralty Jurisdiction
The Supreme Court was declared to be a Court of Admiralty for

the territories of Bengal, Bihar and Orissa. In the exercise of this
jurisdiction, it could hear and try all causes, civil and maritime, all
maritime crimes committed upon ships, ferries, vessels and offences
committed on the high seas at that time.î In trying such cases, the
Supreme Court took help of the petty jury.
IV. Equity Jurisdiction
The Supreme Court at Calcutta was empowered to decide cases

(like the Court of Chancery in England) according to the principles of
47 M.P. Singh, Outlines of Indian Legal & Constitutional History, 36 (2012).

''s Id at 37.
« Supra n. 4 5 , at 5 3 .
50 Id at 54.
51 Kailash, Rai, Indian Legal a n d Constitutional History, 51 (2004).
40
justice, equity and good conscience. It could ignore had technicalities
of law to protect the interests of the aggrieved (injured) parties.
V. Supervisory Jurisdiction
It was empowered to control and supervise the Court of

Collector, Quarter Sessions, Court of Requests etc. It could issue the
writs of Certiorari, Mandamus etc. for effective control and supervision
over the subordinate courts.
VI. Appeals
In civil matters, appeals from the decision of the Supreme Court

could be taken to the King-in-Council England with the leave of the
Supreme Court provided the subject-matter in dispute exceeded 1000
pagodas. Such an appeal could be filed within six months of the date
of judgement. 52
In criminal cases, the Supreme Court enjoyed obsolete

discretion to allow or not to allow appeal to the King-in-Council,
besides, the King-in-Council reserved the right to refuse or admit an
appeal as a special case upon the terms and conditions which it
deemed fit.
3) Working of the Supreme Court
Sir Ehjah Impey was the first Chief Justice and Robert
Chambers, John Hyde and Le Maistre were the first puisne Judges of
the Supreme Court. The Court started functioning towards the end of
1774. Its establishment was welcome for the following reasons:^^
(i) it was the first British Court in India consisting of lawyer

judges;
(ii) it was fully independent of the control of company's Government

in India;
52 N.V. Pranjape, Indian Legal & Constitutional History, 3 3 (2006).

53 Supra n. 4 7 at 3 8 .
41
(iii) its jurisdiction was so wide that every legal wrong of any kind
could be regressed by it;
(iv) subjection of all British subjects to its jurisdiction ensured the

rule of law.
(2) Establishment of Supreme Court at Madras and Bombay
The conditions in Madras and Bombay were distinct from the

conditions at Calcutta. The company authorities decided to establish
Supreme Court at Calcutta first on experimental basis. In course of
time Supreme Courts with professional lawyers as judges, were
established at Madras and Bombay in 1801 and 1824 respectively.
1) Supreme Court at Madras
The company acquired in 1639, and it became presidency in

1666. Before, 1726, administration of justice in Madras grew in three
stages. In implementation of uniform judicial system. Mayor's Court
was established at Madras in 1726.
The Mayor's Court, which was revised in 1753 continued upto

1798. The Recorder's Court at Madras did not survive for a long time.
In 1800, the British Parliament passed an Act of 1800

authorising the Crown George-Ill to establish the Supreme Court by a
Royal Charter in place of the Recorder's Court. Accordingly on the 26*^
December 1800, King George-Ill issued the letters of patent setting up
the Supreme Court at Madras which came into being on the 4*^
September, 1801. Sir Thomas Strange, who was already working as
the Recorder, was appointed as the Chief Justice of the Supreme
Court. The powers vested in the Recorder's court were transferred to
the new Supreme Court, which was also to exercise the same
jurisdiction and to be subject to the same restrictions as the Supreme
Court at Calcutta.54
However, there was one important improvement on the

Recorder's Court. The Supreme Court was a fully professional court
54 Supra n. 45, at 119.
42
consisting of all lawyer judges whereas the Recorder's Court consisted
of same lay elements who had no legal learning and experience.
The jurisdiction, powers of the Supreme Court at Madras were

similar to that of the Supreme Court at Calcutta. It continued to
function till J u n e 1861, when it was replaced by High Court of
judicature under the Indian High Courts Act, 1861.55
2) Supreme Court at Bombay
The company acquired Bombay in 1668. The administration of

justice in Bombay grew in three phases till 1726. In 1726 Mayor's
Court was established in implementation of uniform judicial system in
three Presidencies. The Mayor's Court, which was revised in 1753
continued up to 1758. It was replaced by Recorder's court in 1798.
The Recorder's Court at Bombay continued to function till 1833.56
In 1823, an Act of Parliament authorised the Crown (George-IV)

to establish a Supreme Court in place of the Recorder's Court at
Bombay by a Royal Charter. The Court was formally inaugurated at
Bombay on the 8th May 1824 with E. West and the Chief Justice.
The Supreme Court was to have the same number of judges and
was to be invested with the same powers and authorised as he
Supreme Court at Calcutta with a similar jurisdiction subject to the
same restrictions and control. 57 The Supreme Court at Bombay
functioned upto 1862, when the High Court of Judicature was
established at Bombay under the Indian High courts Act, 1861.58
(b) The Judicial System Set-Up in British India (1861-1947)
The year 1861 witnesses a very important development in the

history of the judicial institutions of India.59 Prior to the passing of the
Indian High Courts Act, 1861, there existed dual system of courts in
55 Id at 120.
56 Id at 120.
57 S.C. Tripathi, Indian Legal a n d Constitutional History, 34 (2011).
58 Kailash, Rai, Indian Legal a n d Constitutional History, 8 8 (2004)
59 J.K. Mittal, Indian Legal & Constitutional History, 126 (2005)
43
India, namely, the Crown's Courts and the Company's Courts.ô The
Supreme Courtî established in the Presidency Towns of Calcutta,
Madras and Bombay were the courts of the British Crown while the
Adalat established in the Mufussil areas were the courts of the East
India Company. These two sets of courts formed the dual system of
courts. The existence of two parallel sets of courts namely, the
Supreme Court and the Sadar Adalats in the Presidency Towns
created great confusion and uncertainty about their respective
jurisdiction.^2 7^^ litigants and public at large are not happy with this
state of affairs. This situation regarding Indian affairs raised a storm
in British Parliament, therefore, the need was felt to reorganise the
judicial system by uniting the King's Courts and Company's Court
and codify law to bring uniformity in the administration of justice.
As a first step towards amalgamation of Crown's Court and the

Company's Courts into a single judicial system, a Central Legislature
Council was established in India under the Charter Act of 1833. The
laws and regulations passed by the Council were equally binding on
all the courts whether established by the Crown or the Company. The
result was that the Supreme Court of the Presidencies lost its
privileged position. The Act of 1833 also provided for the appointment
of a Law Commission to work out an uniform system of laws and
police for the country. ^3
In the second phase of unification of the Supreme Court and the

Sadar Adalats, the Law Commission stressed on the need for a
codified procedural law before such fusion. The Bill for the fusion of
these two sets of courts was finally introduced by Sir Charles Worel in
1853. Consequently, a codified civil procedure was enacted in 1859
and the Penal Code was enacted in 1860.^4
60 Supra n. 58 at 116.
61 The S u p r e m e Court is Calcutta, Madras a n d Bombay were established in year
1774, 1801 a n d 1823 respectively. They replaced the earlier Mayor's Court.
62 N.V. Pranjape, Indian Legal 85 Constitutional History, 129 (2006).
63 Id at 130.
64 Ibid.
44
In the third and last stage, the East India Company was
dissolved by the Crown's Act of 1858 and the responsibility of the
entire government of India, passed on to the British Crown. Finally,
the Indian High Courts Act was passed by the British Parliament on
August 16, 1861 by which the Supreme Court and the Sadar Adalats
of the Presidency Towns were merged together to be known as the
High Court of Judicature at Calcutta, Madras and Bombay.65 These
courts would be supreme over all the courts in the Presidency town
and also in the Mofussil. It was a small piece of legislation consisting
of 19 sections in all. Its main function was to abolish the Supreme
Courts and the Sardar Adalats in the three Presidencies and to
establish instead the High Courts.ê The records and document of the
various courts so abolished were to become the records and
documents of the High Court concerned.
(1) High Court
The Indian High Court Act, passed on 16 August, 1861, was an

Act for establishing High Courts of Judicature in India. It empowered
Her majesty to erect and establish. High Courts of Judicature at
Calcutta, Madras and Bombay. ^7 xhe Act also prescribed the
qualifications for the judges of High Court. Each High Court was to
consist of a Chief Justice and as many puisne judge not exceeding
fifteen, as Her Majesty might think fit to appoint from time to time. At
least, one-third of these judges, including the Chief-Justice, were to be
Barristers of not less than five years' standing; and one-third of them
were to be from amongst those members of the covenanted civil
service of not less than ten years' standing who had served as Zila
Judges for a period of at least three years.^s The remaining posts were
to be filled u p from amongst the pleaders of the Sadar or Supreme
^^ The Indian High Court Act, 1861 amalgamated, the then existing dual system of
courts, and established on High Court for Presidency and Mofussil area. The
High Court of Calcutta was inaugurated on July 2, 1862, the High Court of
Bombay on August 14, 1862 and of Madras on August 15, 1862.
6" Supra n. 1 at 258.
67 Supra n. 59 at 131.
68 Id. at 132.
45
Courts of at least ten years' standing Subordinate Judges or Judges of
the Courts of Small Causes of at least five years' service.^^ Further,
the tenure of judges was fixed and they could hold office at the
pleasure of Her Majesty. However, they could be removed from the
office in case of misbehaviour or infirmity of mind and body.
Each of the High Courts to be established under the Act was to

have and exercise all such civil, criminal, admiralty and vice-
admiralty, testamentary and matrimonial jurisdiction, original and
appellate, and all such powers and authority for and in relation to the
administration of justice in the Presidency for which it was
established, 'ô The High Courts were also conferred with the
superintendence power over subordinate courts. The appeal from the
decision of High Courts lay to the Privy Council where valuation of the
suit was more than Rs. 10,000 and in criminal cases appeals were
allowed in rare cases.'î In addition to this appellate provision, an
appeal would lie before the Privy Council against any decision or order
made by the High Court while exercising its original jurisdiction. In
this context the High Court at Calcutta was authorised to make rules
and regulations relating to procedure for doing judicial works in
respect of other High Courts."^^ After the establishment of High Courts,
various enactments were passed by the Government. By these
enactments no major changes were brought in judicial system, except
the composition of court and salaries of judges, till 1935. Therefore, as
times went on, several other High Courts were established in the
country.''3 A High Court was established at Agra on 17*^ March, 1868
which was subsequently shifted to Allahabad in 1875.'^'*
In 1911, the Indian High Courts Act brought in some changes in

the Charter and the Act. The major change was that the number of
69 Ibid.
™ Supra n. 58 at 122-123.
^' At this stage there was no superior court over High Court, therefore, the appeal
went directly to Privy Council.
72 Supra n. 57 at 68.
73 Supra n. 47 at 95.
74 Id at 96.
46
Judges in a high court was increased from 15 to 20 including the
Chief Justice. The Act also authorised the Crown to establish more
High Courts, wherever and whenever it thought fit.
In 1915, the Government of India Act introduced a restriction

on the jurisdiction of the High Court's of Calcutta, Madras and
Bombay that they "may not exercise any original jurisdiction in any
matter concerning revenue, or concerning any act ordered or done in
the collection thereof according to the usage and practice of the
country or the law for the time being in force."
In February 1916, a High Court at Patna, on 21st March, 1919 a

High Court at Lahore and 2"^ January, 1936 a High Court at Nagpur
were established.
The Government of India Act, 1935 also provided for the High
Courts. This Act repealed all the earlier Acts. Under this Act, every
High Court was to be a Court of Record. It was to consist of a Chief
Justice and such other Judge as were appointed by His Majesty from
time to time.'^5 xhe Judges were to hold office until the age of sixty
years. They could, however, be removed from office earlier on the
ground of misbehaviour or infirmity of mind or body on the
recommendation of the Privy Council.
On the partition of the country in 1947, the Punjab High Court

and in 1948, two High Courts for Assam and Orissa each were
established. Lastly, the Constitution of India makes detailed
provisions about the High Courts. It brings uniformity among them by
removing the difference between the High Courts in the Presidency
Towns and others.
(2) The Federal Court of India
Before the Federal Court of India, was established under the

Government of India Act, 1935, the British Parliament was seriously
considering to tackle the problem of creating a Central Court of Final
•75 Supra n. 62 at 134.
47
Appeal in India. It was partly due to the growing trend of the Indian
public opinion in favour of stopping appeals to the Privy Council from
Indian High Courts 7^
As early as 1921, Sir Hari Singh Gour'^'^ was the first person in
the legal history of India, who realised the necessity of establishing an
all-India Court of final appeal in India in place of the Privy Council.
With this aim in view, he introduced a resolution on 26*^1 March, 1921
in the Central Legislative Assembly. This Assembly recommends to the
Govemor-General-in-Council to be as pleased as to take early steps to
establish a Court of Ultimate Appeal in India for the trial of civil
appeals now determined by the Privy Council in England and as the
court of final appeal against convictions for serious offences
occasioning the failure of justice. '^^ The main arguments for the
establishment of the Federal Court of India were, the working of the
Privy Council was not in accordance with the Hindu and the Muslim
laws. In fact the functioning was criticized by M.A. Jinnah and in
1926 Mahatma Gandhi and Sir, Tej Bahadur Sapru, also supported
the resolution of Sir, Hari Singh Gour. Though the resolution was
defeated but ultimately the sincere efforts brought fruit and the
British Parliament passed the Government of India Act, 1935 and also
provided for the establishment of a Federal Court of India. On l^t
October, 1937, the Federal Court was inaugurated and held its first
sitting on December 6, 1937 at Delhi. The Federal Court consisted of
one Chief Justice and six other Judges. The Government of India Act,
1935 laid down certain qualification for the Chief Justice and other
Judges.'^5 The Judges of the Federal Court were appointed by His
Majesty. They were to remain in office till they reached the age of 65
years. However, they could be removed from office by His Majesty on
1^ Supra n. 11 at. 223.

"^"^ Sir Hari Singh Gour was the famous Advocate and Founder of the Sagar
University in Madhya Pradesh.
78 Legislative Assembly (India) Debates, Vol. 1 (1921) p. 1606.
79 Supra n. 62 at 141.
48
the recommendations of judicial Committee of the Privy Council on
grounds of misbehaviour or infirmity of mind or body.ô
Being the Highest Court in India, the Federal Court are given
original, appellant and advisory jurisdiction. In such way the court
exercised v^îde powers in civil, criminal and constitutional matters.
Further appeals from the decision of the Federal Court lay to the Privy
Council in England. However, consequent to the passing of the
Abolition of the Privy Council Jurisdiction Act, 1949, complete judicial
autonomy was given to the Indian Judiciary and appeals from the
Indian Courts ceased to be taken to be taken to the Privy Council.î
The Federal Court functional until the coming into force of the
Indian Constitution, w.e.f. January 26, 1950 when it gave way to the
Supreme Court of India and all the Federal Court Judges on that day
became the Judges of the Supreme Court.^2 Thus, its contribution to
Indian Judicial System in setting healthy traditions of fair play and
justice has earned it a unique place in the Legal and Constitutional
history of India.
(3) Privy Council
Privy Council in England was also known as the 'king-in-

Council or Sovereign-in-Council.83 Till IQth October, 1949 the Privy
Council, sitting in England, was the supreme appellate tribunal for
India. The tribunal had done a remarkable work in the field of law and
justice of this country. ^"^ It made a remarkable contribution in
interpretation of law and in settling unsettled questions. Generally,
justice is administered through the courts. But in England, justice is
administered through the King on the principle that the King is the
foundation of justice. This prerogative power of the King is the basis
for the authority of the Privy Council.
80 Supra n. 1 at. 312.

81 Supra n. 62 at 142.
82 Art. 374 (1) of the Constitution.
83 Supra nA5 at 170.
84 Supra n. 59 at 141.
49
The Privy Council, proved to be the unique court of law in the
whole world. The Privy Council sitting in England heard appeals from
the courts of some 150 countries, in all types of cases, civil and
criminal, and applied not merely English laws but diverse systems of
law in the hey-day of the British Empire. The right to appeal from
Indian Courts to the Privy Council was granted in 1726 for the first
time. This right of appeal continued upto September 23, 1949. In
1948, the Central Legislature passed the Federal Court (Enlargement
of Jurisdiction) Act, with a view to enlarge the appellate jurisdiction of
the Federal Court and to restrict appeals to the Privy Council. Still,
the appeals continued to Privy Council. Ultimately, the Abolition of the
Privy Council Jurisdiction Act, 1949 was passed by the Indian
Constituent Assembly on September 24, 1949. Consequently, the
jurisdiction of the Privy Council to hear appeals from Indian Courts
came to an end. Thereafter, the Federal Courts of India was declared
to be the highest appellate tribunal and the said court was replaced by
the Supreme Court of India on January 2G, 1950. Thus, the Supreme
Court of India became the court of last resort under the constitution
of India.85
The foregoing discussion pertaining to the organisation of

judicial system in pre-constitutional era reveals that during ancient
period administration of justice was very simple, speedy and
inexpensive. However, the King used to carry-out the administration of
justice with the aid and advice of purohit or priest. He was the Chief
punishment imposer as he was the supreme power in this regard. It
was the duty of the King to protect judicially all castes and classes.
There was no assembly or committee in this period, only religion was
a regulator for the King. Emperor was not the maker of laws but he
was the guardian or protector of law.ê But as a whole judiciary was
not independent from other branches of the Government. Therefore, in
12* century Muslims capture political power and established their
85 Supra n. 47 at 103.
86 Supra n. 57 at 8.
50
own judicial system in India. During Muslim period again law was
based on religion and executive heads at various administrative levels
with the help of Qazis and Muftis were assigned judicial functions.
However, there was gradation of courts but they were not independent
of executive. Thereafter in 17* Century Britishers came to India and
with the passage of time they captured political power. They
introduced British judicial system in India because Muslim system
was not adequate for them. Initially Company was authorised to look
after the administration of justice in India. At that time the persons
engaged in judicial work had no legal knowledge and qualifications.
This thing was soon realised by the Britishers and tried to separate
judiciary form executive.
This again led to conflict between executive and judiciary. Then

in the Presidency Towns Crown established the Royal Courts and in
Provinces, there were Company Courts. This dual court system ended
with the passions of Indian High Courts Act, 1861. In 1862 in place of
dual court system single judicial system was established by creating
High Courts. After some time a need was felt to have Central Court in
India. Thus Sir Hari Singh Gour on March 26, 1921 made a proposal
for the first time for the establishment of a Central Court of final
appeal in India. The proposal was materialised with the establishment
of Federal Court of India at Delhi on October 1, 1937, under Section
200 of the Government of India Act, 1935. The final judicial body was
Privy Council in England. The Federal Court of India was replaced by
the Supreme Court of India on January 28, 1950, after Indian
Constitution, which came into force on January 26, 1950.
III. Post -Constitutional Era
(i) Draft Constitution
There is no denying the fact that after independence and before

the commencement of the present Constitution, the Government of
India Act, 1935 was the Constitution of India. This Act remained in
operation with some modifications as were made under the Act of
51
1947.8'^ But even before attaining independence, the Constituent
Assembly was constituted to prepare a Constitution for India.^^ This
body was constituted on the suggestions of Cabinet Mission. ^^
However, the Constituent Assembly was elected prior to independence
but at that time it was not sovereign body and had to prepare
Constitution within the frame work as mentioned by Mission. Thus, it
was only after August 15, 1947 when the Constituent Assembly got
the status of sovereign body and became free to prepare any kind of
Constitution for free India. Thereafter, it undertook the work to
prepare new Constitution seriously. For this end the Union
Constitution Committee and Provincial Committee were constituted on
December 9, 1946. As far as the judicial system was concerned, an
adhoc Committee was constituted to prepare a model for future
judicial system of India:
They studied elaborately the provisions of Federal Court

established under Government of India Act, 1935, the apex Court for
the timebeing. The provisions thrashed by Committee members were
further churned by B.N. Rao, the Constitutional Advisor. He brought
together data from different Countries and prepared rough draft.
Therefore, in order to have a detailed discussion on the rough draft
provisions, the Drafting Committee was formed under the
Chairmanship of Dr. B.R. Ambedkar. The Draft Constitution was
prepared and published in January 1948 on the basis of comments
and suggestions of the members, along with reports of Union
Constitution Committee, Provincial Constitution Committee and
Adhoc Committee. Under the Draft Constitution, elaborate provisions
were made regarding Union Judiciary, State Judiciary and
s^ The Indian Independence Act, 1947 m a d e specific mention t h a t Government of

India Act, 1935 will remain operative subject to the modifications suggested in
the Act.
88 The Constituent Assembly was constituted t h r o u g h election in J u l y , 1946.
89 The Constituent Assembly was constituted on the r e c o m m e n d a t i o n s of the
Cabinet Mission. This Mission c a m e to India on March, 4, 1946. It suggested
there should be a Union of India a n d for the p u r p o s e of framing a new
Constitution, a Constituent Assembly be elected.
52
Subordinate Judiciary.ô The provisions of the Draft Constitution were
then placed before Constituent Assembly along with the amendments
or modifications moved by members for its final approval.
(ii) Constituent Assembly Debates
The provisions of Draft Constitution regarding Judiciary came

before Constituent Assembly on Tuesday, the 24^ May, 1949. The
main debate centred around the Constitution of the Supreme Court,
the appointment of judges, conditions of service, independence of
judiciary and restriction after retirement and resignation from the post
of judgeship. The first Article which came for discussion was regarding
constitution of Supreme Court. The draft articles reads as follow:
**There shall be a Supreme Court of India consisting of

Chief Justice of India and such number of other judges not being
less than seven as Parliament may by law prescribe".^^
The next point raised for discussion was regarding the

appointment of Supreme Court Judges. Clause (2) of Article 103 was
the relevant provision under Draft Constitution in this regard. Shri
Krishna Chandra Sharma (United Provisions; General) proposed that
in Article 103 for clause (2) the following clause may be substituted.
The proposed clause reads as under:
"Every Judge of the Supreme Court shall be appointed by

the President by warrant under his hand and seal and shall
hold office until he attains the age of sixty five year; Provided
that in the case of appointment of a Judge, other than the Chief
Justice, the Chief Justice of India shall always be consulted**.^^
In support of his amendment Krishna Chandra Sharma

mentioned that the relevant provisions have been borrowed from the
Constitution of United States and the Government of India Act, 1935.
^0 The provisions in respect of S u p r e m e Court of India were from Articles 103-123,

in respect of High C o u r t s from Articles 191-209, a n d in respect of Subordinate
Judiciary from Articles 209-A-209-E.
5' See, Draft Constitution of India, Article 103 (1).
''2 See, Constituent Assembly Debates, Volume VIII, pp. 2 3 0 - 2 3 1 .
53
Under Section 200 of the Government of India Act, 1935 the Chief
Justice and other Judges of Federal Court were appointed by the King
on the advice of his Ministers. Similarly, in United States of America,
the Chief Justice of the Supreme Court is appointed by the President
on the advice and consent of the Senate. This procedure is also
followed in other Dominions.^3
Prof. Shibban Lai Saksena (United Provinces: General)

suggested other mode of appointment in the Supreme Court and he
stated that the clause (2) of Article 103, the following clauses be
substituted:
''The Chief Justice of Bharat, who shall be the Chief

Justice of the Supreme Court, shall be appointed by the
President subject to confirmation by two-thirds majority of the
total number of members of Parliament assembled in a Joint
session of both the Houses of Parliament. Every Judge of the
Supreme Court shall be appointed on the advice of the Chief
Justice of Bharat by the President under his hand and seal and
shall hold office until he attains the age of sixty-five years".^^
The one more suggestion came from Prof. K.T. Shah (Bihar,
General). He stated: "that in clause (2) of Article 103, after the word
Vith' the words 'the Council of States and' be inserted". The amended
proposition would read:

the President by warrant under his hand and seal after
consultation with the Council of States and such of the Judges of
the Supreme Court and of the High Courts in the States as may
be necessary for the purpose and shall hold office until he
attains the age of sixty-five years".^^
93 Ibid.
s-* Ibid.
95 Id. at 2 3 4 .
54
The next issue raised by the members was about the question of
age of retirement. Various views have been expressed as to the age of
retirement. Some were of the opinion that age of Judge should be
fixed;96 it should be sixty, sixty-five and sixty-eight years. But the
other views were that there should be no age limit for judges.^7 The
Chairman of the Drafting Committee suggested that the age should be
fixed by the Constitution and he accepted the proposal of sixty-five
years for Supreme Court Judges.
After the fixation of retirement age for judges a related matter

was raised in the Assembly. That after retirement judges may be
debarred from holding any office of profit under the Government of
India or State as the case may be. In this regard two amendments
were moved, one by Prof. K.T. Shah and another by Shri J a s p a t Roy
Kapoor. Prof. K.T. Shah suggested that after clause (2) of Article 103,
the following new clause be added:
**Any person who has once been appointed as xhidge of any

High Court or Supreme Court shall be debarred from any
executive office under the Government of India or under that of
any unit, or, unless he has resigned in writing from his office as
Judge, form being elected to a seat in either House of Parliament,
or in any State Legislature**.^^
Shri Jaspat Roy Kapoor proposed new clause (2A) of Article 103,
the following be substituted:99
**(2-A) No Judge of Supreme Court shall be eligible for

further office of profit either under the Government of India or
^^ Prof. S.L. S a k s e n a a n d K.C. S h a r m a were in favour of 65 years, B. Pocker Sahib,

M. Nazirudden Ahmed were in favour of the raise the age of retirement from 65
to 6 8 years. J a s p a t Ray Kapoor a n d Mohan Lai G a u t a m were in favour of
reducing the age from 65 to 60 years.
5^ Prof. K.T. S h a h w a s of the opinion t h a t there should be no age limit a s far a s the
m a t t e r of retirement is concerned.
98 Article Article 103 (2-A), See Constituent Assembly Debates, Vol. VllI, pp. 2 3 9 -
240.
99 /d. at 2 4 0 - 2 4 1 .
55
under the Government of any State after he has ceased to hold
his office".
The clause (3) of Article 103 lays down the qualifications of

Judges of the Supreme Court. The clause reads:
"A person shall not be qualified for appointment as a

Judge of the Supreme Court unless he is a citizen of India and.
a) has been for at least five years a Judge of a High Court or

of two or more such courts in succession; or
b) has been for at least ten years an adxH>cate of a High

Court or of two or more such courts in succession**.
Thereafter, clause (4) of Article 103 was discussed. This clause

deals with the procedure for the removal of a Judge. The draft clause
reads as follows: ^ô
"A Judge of the Supreme Court shall not be removed from

his office except by an order of the President passed, after a
Committee consisting of all the Judges of the Supreme Court had
intfestigated the charge and reported on it to the President and
etc."
Then came the question regarding the allegiance to the office

before entering to office. To this effect the provision under draft
Constitution was contained in clause (6) of Article 103. This clause
provided that:
"Every person appointed to be a Judge of Supreme Court

shall, before he enters upon his office, make and subscribe
before the President or some person appointed in that behalf by
him a declaration according to the form set out for the purpose in
the third schedule".
To this clause Dr. B.R. Ambedkar moved one amendment and

he suggested that in clause (6) of Article 103 for the words, "a
100 See, Draft Constitution of India, Article 103 (4)
56
declaration" the words "an affirmation and oath" may be substituted.
The next issue which came for discussion in the Assembly was
regarding after retirement prohibitions and restrictions were proposed
by Mr. Mohd. Tahir and another by HonlDle Shri K. Santhanam.ioi
But this clause is deleted after giving some amendments. The Article
103 (7) runs thus:
**JVo person who has held office as a Judge of the Supreme

Court shall plead or act in any court or before any authority
within the territory of India**.
Thereafter the Articles from 104 to 121 were discussed on May

27 and 30, J u n e 3, 14 and October 14 and 16, 1949. These Articles
dealt with salaries etc. of Judges, appointment and acting Chief
Justice, appointment of adhoc judges, attendance of retired judges at
sitting of Supreme Court, seat of Supreme Court, original jurisdiction,
appellate jurisdiction, special leave to appeal, power to issue writs,
ancillary power, law declared by Supreme Court to be binding on all
courts, enforcement of decrees and orders of Supreme Court, power of
President to consult Supreme Court and power to make rules,
reference to Supreme Court by High Courts and enlargement of
jurisdiction. To these articles only minor amendments were moved in
the Assembly. Thus, after brief discussion these articles were adopted
and added to the Constitution. 102 Article 123 of the Draft Constitution
was considered unnecessary and, therefore, was deleted from the
Constitution. 103 Under the Draft Constitution a specific provision was
incorporated regarding establishment of the Supreme Court. This
provision was contained in Article 122 of the Draft Constitution. The
said provision was considered vital for the independence of judiciary
by the members of Assembly and, therefore, this raised considerable
debate in the Assembly. The article runs thus.^^'*
101 See, Draft Constitution of India, Article 103 (7).

102 See, Constituent Assembly Debates, Vol. Vlll, pp. 3 7 5 - 3 8 8 .
103 Id. at 6 5 5 .
104 Id. at 3 8 8 .
57
"Officers and servants and the expenses the Supreme
Court.
1) Appointment of officers and servants of the Supreme Court

shall be made by the Chief %Justice of India or such other
Judges or officers of court as he may directs: provided that
the President may by rule require that in such cases may
be specifically 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 Union
Public Service Commission.
2) Subject to the provisions of any law made by Parliament

the conditions of service of officers and servants of the
Supreme Court shall be such as may be prescribed by rules
made by the Chief Justice of India or by some other Judges
or Officers of the Court authorised by the Chief %histice of
India to make rules for the purpose; Provided that the
salaries, allowances and pensions payable to or in respect
of such officers and servants shall be fixed by the Chief
Justice of India in consultation with the President.
3) The administrative expenses of the Supreme 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 revenues of India and any fees or
other money taken by the court shall from past of those
revenues".
In order to secure an independence of judiciary the amendment

was moved for the proviso to clause (2) of the proposed article 122, the
following proviso is substituted:
"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 President."
58
After discussing and giving final shape to provision related to
the Supreme Court, the Constituent Assembly took the High Court
draft provisions for discussion. They thought that it would be easy for
the House to deal with the articles related to High Courts because
they have already dealt similar provisions during discussion of the
Supreme Court. The Articles 191 to 209 were earmarked for High
Court. 105 Here an attempt has been made to present the view points of
members regarding appointments, removal, qualifications, age and
Post retirement, prohibitions and restrictions of judges and the
endeavour of members to maintain and preserve the independence of
judiciary.
The Article 193 prepared by the Drafting Committee reads as:
1) "Every %Judge of a High Court shall be appointed by the

President by a warrant under his hand and seal after
consultation with the Chief Justice of India, the Governor
of the State, and in case the appointment of a Judge other
than the Chief Justice, the Chief Justice of the High Court
of the State, and shall hold office, until he attains the age
of sixty years or such higher age not exceeding sixty five
years may be fixed in this behalf by law of the legislature
of the state, provide that;
a) Judge may, by writing under his hand addressed to

the Governor, resign his office;
b) a judge may be removed from his office by the

President in the manner provided in clause (4) of
Article 103 of this Constitution for the removal of a
Judge of the Supreme Court;
c) the office of the Judge shall be vacated by his being

appointed by the President to be a Judge of the
Supreme Court or of any other High Court.
105 Under Draft Constitution provisions contained in Articles 191-209 were a

complete Code a s far a s High C o u r t s were concerned.
59
2) A person shall not be qualified for appointment as a Judge
of a High Court unless he is a citizen of India and
a) has held for at least ten years, a Judicial office in

any state in or for which there is a High Court; or
b) has been for at least ten years an advocate of a High

Court of two or more such courts in succession**.
Judicial independence was ensured primarily through the

procedure for the appointment of judges and fixity of tenure for them.
When the principles of the Draft Constitution were being discussed,
there was general agreement that as in the case of Supreme Court
judges the appointment of judges of High Courts should also not be
left to the unfettered discretion of the executive Government, ^ê jn
reply to B.N. Rau's questionnaire of March 17, 1947, several
suggestions were received as to the manner of appointment of High
Court judges, including one that the head of the judiciary should be
elected by the Provincial Assembly. In his memorandum of May 30,
1947, on the Provincial Constitution, the Constitutional Adviser
included a general suggestion that the provisions of the Government
of India Act, 1935, regarding High Courts might be adopted with
necessary changes; on the specific question of the appointment of
High Court judges, his proposal was that they should be appointed by
the Governors with the approval of two-thirds of the members of the
council of State.
There was considerable support, both in the Assembly and

outside, for the proposal that in the appointment of High Court
judges, the Chief Justice of India, the Governor of the State and the
Chief Justice of the High Court (expect where the Chief Justice
himself was being appointed) should be consulted. The conference of
the judges of the Federal Court and Chief Justices of the High courts
106 B. Shiva Rao, The Framing of Indian Constitution (Select Documents), 497
(1968).
60
held in March 1948 presented a memorandum containing their
unanimous views on matters affecting the judiciary, lo^
In order to check this tendency the memorandum suggested

that the recommendation of the Chief Justice of a High Court should
be sent direct to the President who would then take step to consult
the Governor of the State and the Chief Justice of India. The proposal
contained in the memorandum for the appointment of High Court
judges was that these appointments would be made by the President
"on the recommendation of the Chief Justice of the High Court
concerned after consultation with the Governor of the State concerned
and with the concurrence of the Chief Justice of India." In the
Assembly this suggestion was moved as an amendment by B. Pocker
Sahib. Some other members suggested doing away with consultation
with Governors about these appointments; and Shibban Lai Saxena
sought to provide by an amendment that, as in the case of Supreme
Court judges, a body of judges of the Supreme Court and the High
Courts should be consulted on these appointments. In the end,
however, the proposals of the Drafting Committee were adopted by the
Assembly. 108
Another matter on which there was much discussion related to

the retirement age of judges B.N. Rau in his Draft Constitution had
suggested sixty years or such higher age as might be fixed by an Act of
the Local Legislature. The Drafting Committee adopted this formula
with one change, viz. that no such Act could continue a High Court
judge in office beyond the age of sixty five. T.T Krishnamachari, on
behalf of the Drafting Committee, moved an amendment to the effect
that no judge could continue in office after sixty, which would
therefore be the age for retirement for all judges without exception. i09
Thereafter, the procedure approved by the Constituent

Assembly and included in the Draft Constitution for the removal of
107 Id. at 4 9 9 - 5 0 0 .
108 Article 2 1 7 of Constitution of India.
109 Supra n. 106 at 5 0 1 .
61
High Court j u d g e s was, a s in the case of j u d g e s of the S u p r e m e Court,
t h a t this could only be done by a n order of the President on a n
a d d r e s s by each House of Parliament in the s a m e session. T h u s ,
different opinions were given by legal luminaries a n d o t h e r s , b u t
majority opinion w a s in favour of retaining the original text of the
Draft Article. Therefore, this article w a s adopted a n d a d d e d to the
Constitution.
Next Article where considerable debate w a s held in Article 196.

The text of the article in the Draft Constitution w a s , that,
"No judge who has held office:
(a) as a Judge of a High court; or
(b) as an additional Judge or temporary Judge of a High Court

on having been recruited from the Bar shall plead or act in
any court or before any authority within the territory of
India, "^ô
Dr. B.R. A m b e d k a r mOved, t h a t for Article 196, the following

article be subtitled;
"No person who has held office as a Judge of a High Court

after the commencement of this Constitution shall plead or act
in any court or before any authority within the territory of
India."! 1^
Another m a t t e r which evoked divergent c o m m e n t w a s the right

of retired High Court j u d g e s to engage in practice at the Bar; the Act of
1935 did not contain any provision in this matter; b u t the practice
was unifcurm t h a t all p e r s o n s appointed p e r m a n e n t l y to a High Court
were required to give an u n d e r t a k i n g t h a t after retirement they would
not practice before any court within the jurisdiction of t h a t court.
Persons appointed a s acting or additional j u d g e s were, however, free
to engage in private practice. ^ 12 The Drafting Committee including an
110 Id. at 589.

111 See, Constituent Assembly Debate, Volume VIII, p. 680.
11^ Supra n.106 at 502
e.2 '4?aw^.."'
article imposing an absolute ban on practice on every one who had
held office as a judge of a High Court, and also on every one who,
having been recruited from the Bar, was appointed as an acting or
additional judge; and this ban extending to pleading or acting in any
court or before any authority in India.
This proposal met with some opposition from Hukam Singh who
moved an amendment proposing that the restriction on private
practice should apply only to practice within the jurisdiction of the
court where a judge had served. He was supported by H.V. Kamath
and B.M. Gupte, the latter maintaining that the cumulative effect of
the reduction proposed in pay and pensions, compulsory retirement at
the age of sixty, and an absolute ban on practice after retirement
would be that the best men at the Bar would not be prepared to
accept judgeships and men of inferior calibre who had failed at the
Bar would be chosen. This would seriously affect the independence of
the judiciary' seriously affect that independence of the judiciary. The
Assembly, however, was not convinced; Hukam Singh's amendment
was negative and the article proposed by Ambedkar was adopted and
added as Article 220 of the Constitution. ^^
Next Article which is related to the independence of judiciary is

Article 205 of the Draft Constitution, ii'^ This article is analogues to
Article 122 of the Draft Constitution. The only difference was that in
place of 'Supreme Court' we have a High Court and President was
substituted by Governor.
Dr. B.R. Ambedkar moved two amendments to the draft Article.

First, he proposed a new article in place of existing article. Secondly,
he moved an amendment to his own amendment that for the word
'consultation' the word 'approval' may be substituted. Therefore, the
said article was added to the Indian Constitution with the
amendments of Dr. B.R. Ambedkar.
113 Id. at 503.

114 Article 205 provided for salaries, allowances a n d pensions of offices a n d s e r v a n t s
a n d the expenses of the High Courts.
63
On the provisions regarding the jurisdiction and powers of High
courts there was some discussion; but generally there was a
consensus of opinion about the main principles. The main provision,
adopted from the Government of India Act, 1935 was contained in
Article 201 of the Draft Constitution of February, 1948. It laid down
that the jurisdiction of and the law administered in, any existing High
Court, and the respective powers of judges in relation to the
administration of justice in the court would be the same as
immediately before the commencement of the Constitution, with a
provision already approved by the Constituent Assembly on the
suggestion of Alladi Krishnaswami Ayyar, that any restriction to which
the exercise of the original jurisdiction of any High Court with respect
to revenue matters was subject would no longer apply. This provision
was adopted without any change.îs
In addition the relevant entries in the legislative lists also gave

power to the Union and State Legislature to enact laws on the
jurisdiction and powers of High Courts and other courts on all matters
on which they were competent to legislate. The Draft Constitution also
made the important provision which conferred on High Courts the
power to issue to any person or authority directions, orders or writs,
in the nature of habeas corpus, mandamus, prohibition, quo-
warranto and certiorari for any propose, including directions,
orders or writs for the enforcement of fundamental rights. This was
adopted with a few verbal changes. ^ is At the revision stage the articles
relating to High Courts were numbered 214 to 232, and the Drafting
Committee added one more Article (222) to enable the President to
transfer judges from one High Court to another, n'^
The long discussion took place in the Constituent Assembly for

establishing High Courts and Supreme Court in the country. However,
"5 Draft Constitution, February 1948, Article 202, Select D o c u m e n t s III, 6, p. 5 9 3 ,

now Article 2 2 5 of the Constitution.
116 Supra n . l 0 6 a t 5 0 4 - 5 0 5 .
117 Ibid.
64
the unfortunate part was that the very little time was devoted to
discuss the judiciary at the grass root level. The subordinate courts
are the real pillars. They play crucial role in the administration of
justice and is rightly said to be the cutting-edge of the judicial system.
The majority of the disputes are decided at this level. However, there
were certain anomalies in the organisation of judicial system and the
transfer of power. Both the Indian statutory (Simon) Commission in
1930 and the Joint Select Committee on Indian Constitutional Reform
in 1934 had emphasized the paramount importance of an
independent and fair-minded judiciary enjoying the confidence of the
people. Special stress was laid on the need for a competent
subordinate judiciary, because as the Joint Committee observed;
**It is the subordinate Judiciary in India who are brought

most closely into contact with the people, and it is no less
important, perhaps indeed even more important, that their
independence should be placed beyond question than in the case
of the superior Judges. "^ ^ *
Therefore, the subordinate judiciary was not discussed during

the early stages of Constitution making and no specific attention was
paid to the subordinate judiciary and neither the Draft Constitution
prepared by the Constitutional Adviser in 1947 nor that prepared by
the Drafting Committee in 1948 constrained any specific provision on
the subject. Many views were realised at the Conference of the Federal
Courts and of the Chief Justice of the Provincial High Courts held in
March 1948. On the basis of the views expressed in the Conference,
the Drafting Committee was compelled to make recommendations for
insertion of new Chapter VII in Part VI containing Articles 209-A, 209-
B; and 209-C. On 16^^ September, 1949 Dr. B.R. Ambedkar moved
these articles for general discussion in the House. Thereafter, the new
118 J o i n t Select Committee on Indian Constitutional Reform, Report (1934), para.

337.
65
Articles 209-D a n d 209-E were also d i s c u s s e d in t h e C o n s t i t u e n t
Assembly. The brief s u m m a r y of the Articles is a s follows: ii^
Article 209-A. ''Appointment of District J u d g e s
a) Appointments of p e r s o n s to be, a n d the posting a n d promotion

of, district j u d g e s in any State shall be m a d e by t h e Governor of
the State in consultation with the High Court exercising
jurisdiction in relation to s u c h State.
b) A p e r s o n not already in t h e service of the Union or of the State

shall only be eligible to be appointed a s District J u d g e if he h a s
been for not less t h a n seven y e a r s a n advocate or a pleader a n d
is r e c o m m e n d e d by the High Court for a p p o i n t m e n t . "
Article 2 0 9 - B '^Recruitment of o t h e r t h a n District J u d g e t o t h e

Judicial Service
Appointments of p e r s o n s other t h a n District J u d g e to the

judicial service of a State shall be m a d e by the Governor in accordance
with rules m a d e by him in this behalf after consultation with the State
Public Service Commission a n d with the High Court."
Article 2 0 9 - C "Control over Subordinate Courts
The control over District C o u r t s a n d c o u r t s s u b o r d i n a t e thereto

including the posting a n d promotion of, a n d t h e g r a n t of leave to
p e r s o n s belonging to the judicial service of a State a n d holding a n y
p a r t inferior to the post of District J u d g e shall be vested in the High
Court b u t nothing in this article shall be c o n s t r u e d a s taking away
from any s u c h person the right of appeal which m a y have u n d e r the
law regulating the conditions of this service or a s authorizing the High
Court to deal with him otherwise t h a n in a c c o r d a n c e with the
conditions of his service prescribed u n d e r s u c h law."
"9 The C o n s t i t u e n t Assembly Debates, vol. IX, pp. 1571-1580.
66
Article 2 0 9 - D
a) The expression "District J u d g e " includes j u d g e of a City Civil

Court, Additional District J u d g e , J o i n t District J u d g e , Assistant
District J u d g e , Chief J u d g e of a small C a u s e Court, Chief
Presidency Magistrate, Additional Chief Presidency Magistrate,
Session J u d g e , Additional Session J u d g e a n d A s s i s t a n t Sessions
Judge;
b) The expression "Judicial Service' m e a n s a service consisting

exclusively of a person's intended to fill t h e p o s t of District
J u d g e a n d other civil judicial p a r t s inferior to t h e post of District
Judge."
Article 2 0 9 -E. ''Application of t h e provisions of t h i s Chapter t o

certain c l a s s e s of Magistrates
The Governor may by public notification direct that the

foregoing provisions of this C h a p t e r a n d a n y rules m a d e t h e r e u n d e r
shall with effect from s u c h date a s a m be fixed by him in this behalf
apply in relation to any class or classes of m a g i s t r a t e s in the State a s
they apply in relation to p e r s o n s appointed to t h e judicial service of
the State subject to s u c h exceptions a n d modifications a s m a y be
specified in the notification".
T h u s , after discussion the all Articles a s proposed by Ambedkar

in the C o n s t i t u e n t Assembly were adopted a n d t h e s e have become
Articles 2 3 3 to 2 3 7 of the Indian Constitution.
(iii) Constitutional Provisions
The Constitution of India is the world's largest Written

Constitution a n d d r a w s inspiration from various other Constitution of
the world. In any country, the J u d i c i a r y plays the important role of
interpreting a n d applying the law a n d adjudicating u p o n controversies
between one citizen a n d a n o t h e r a n d between a citizen a n d the State.
It is the function of the c o u r t s to m a i n t a i n rule of law in the country
a n d to a s s u r e t h a t the government r u n s according to law. In a country
67
with a Written Constitution, courts have the additional function of
safeguarding the supremacy of the Constitution by interpreting and
applying its provisions and keeping all authorities within the
constitutional framework. 120
The Constitution of India was adopted by the Constituent

Assembly on November 26, 1949. Some important provisions came
into operation on the same day. The rest of the provisions came into
force on January 26, 1950 commonly known as the commencement
day for the Indian Constitution. The articles passed by the
Constituent Assembly were renumbered. The Supreme Court of India
is the Apex Court and is the final interpreter of the Constitution and
the laws. 121 The provisions for its establishment, powers and
jurisdiction were set in Articles 124 to 147 of the Constitution. The
Articles 214 to 232 and 233 to 237 deals with the High Courts and
Subordinate Courts respectively in the Country.
A. The Supreme Court (Articles 124 to 147)
Chapter IV of Part II of the Constitution of India, deals with the

Union Judiciary and provides for the appointment, removal, power
and jurisdiction of the Judges of the Supreme Court of India. India
has a unified judicial system with the Supreme Court standing at the
apex. There are High Courts below the Supreme Court under each
High Court there exists a system of subordinate courts. 122 7^5
Supreme Court thus enjoys the topmost position in the judicial
hierarchy of the country. It is the supreme interpreter of the
Constitution and the guardian of the people's Fundamental Rights. It
is the ultimate court of appeal in all civil and criminal matters and the
final interpreter of law of the land, and thus helps in maintaining a
uniformity of law throughout the country.
1^0 M.P. J a i n , Indian Constitutional Law, 191 (2008).

'^1 Narender Kumar, Constitutional Law of India, 4 8 4 (2004).
1^^ Supra n. 120 at 191.
68
(a) Constitution of the Supreme Court [Article 124 (1)]
Clause (1) of Article 124 provides:
*'There shall be a Supreme Court of India consisting of a

Chief Justice of India and until Parliament by law prescribes a
larger number, of not more than seven other judges,"^^^
At the commencement of the Constitution, the Supreme Court

consisted of a Chief Justice of India and not more than seven other
Judges. Parliament is empov^êred to prescribe by law, a large number
of other Judges. In the exercise of this power, Parliament enacted the
Supreme Court (Number of Judges) Act, 1956 increasing the number
of other judges, to nine (9). The number of other judges was raised to
13 in 1960124 and then to 17 in 1977.125 The Supreme Court number
of judges (Amendment) Act, 1986 has raised the strength of other
judges to 25. At present, the Supreme Court consists of a Chief
Justice and 30 other judges. Thus, the strength of the Judges of
Supreme Court is subject to law passed by Parliament from time to
time in this area.i26
(b) Appointment of Judges (Article 124 (2))
Clause (2) of Article 124 provided:

the Parliament 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 for the purpose and shall hold office until he
attains the age of sixty-five years."^^"^
1^3 Supra n. 121 at 4 8 4 .

'^"^ See, The S u p r e m e Court Number of J u d g e s (Amendment) Act, I 9 6 0 .
1^5 See, The S u p r e m e Court Number of J u d g e s (Amendment) Act, 1977.
1^6 J.N. Pandey, Constitutional Law of India, 431 (2003).
1 " Supra n. 121 at 4 8 4 - 4 8 5 .
69
(c) Qualification for Appointed-as a J u d g e (Article 1 2 4 (3)
Clause (3) of Article 124 lays down the following qualifications

for a p e r s o n to be appointed a s a J u d g e of the S u p r e m e Court: i28
I. he m u s t be a citizen of India; a n d
II. he h a s been for at least five years a J u d g e of a High Court or of

two or more High C o u r t s in succession; or
III. h a s been for at least ten years a n advocate of a High Court or of

two or more High C o u r t s in succession; or
IV. h e is, in t h e opinion of the President, a distinguished jurist.
(d) R e m o v a l of J u d g e s (Article 1 2 4 (4)
A J u d g e of t h e S u p r e m e Court m a y be removed by a n order of

t h e President on t h e ground of proved misbehaviour or incapacity. The
order of the President c a n be p a s s e d after he h a s been a d d r e s s e d to by
b o t h H o u s e s of Parliament in the s a m e Session.^29 x h e procedure for
t h e p r e s e n t a t i o n of a n a d d r e s s a n d for the investigation a n d proof of
t h e misbehaviour or incapacity of a J u d g e will be determined by
Parliament by law. iô Parliament enacted the J u d g e s Inquiry Act,
1 9 6 8 , in the exercise of the power conferred by Article 125 (5). The
Act and the Judges (Inquiry) Rules 1969, made thereunder,
provided for removal of a j u d g e on t h e ground of proved misbehaviour
or incapacity. They do not provide for the prosecution of a J u d g e for
offences u n d e r Section 5 (1) (e) of the Prevention of Corruption Act,
1947.
(e) Salaries and Allowances (Article 125)
Clause (1) of Article 125 empowers Parliament to determine the

salaries to be paid to the J u d g e s of the S u p r e m e Court. Until
provisions in t h a t behalf was so m a d e , the J u d g e w a s to get s u c h
salaries a s are specified in the Second Schedule, iî The salaries a n d
128 Id. at 4 8 8 .
129 Id. at 4 8 9 .
130 (Clause (5)) of Article 124.
131 Supra n.l21 at 4 9 1 .
70
allowances of the J u d g e s of the S u p r e m e Court are charged u p o n t h e
Consolidated F u n d of India a n d they are not subject to t h e vote of t h e
Parliament. 132
(f) Acting Chief J u s t i c e (Article 126)
Article 126 provides t h a t w h e n the office of t h e Chief J u s t i c e of

India is v a c a n t or when the Chief J u s t i c e is, by r e a s o n of a b s e n c e or
otherwise, u n a b l e to perform the d u t i e s of his office, t h e d u t i e s of t h e
office shall be performed by s u c h one of t h e other J u d g e of the
S u p r e m e Court a s the Parliament m a y appointed for the p u r p o s e . 1^3
(g) Ad-hoc J u d g e (Article 127)
If a t a n y time there is no q u o r u m of t h e J u d g e s available in the

Court to hold a n d continue a n y session of the Court, t h e Chief J u s t i c e
of India may, with the previous c o n s e n t of the President a n d after t h e
consultation of the Chief J u s t i c e of the High Court concerned, r e q u e s t
a J u d g e of a High Court to act a s ad hoc J u d g e in t h e S u p r e m e Court
for s u c h period a s m a y be necessary. The ad-hoc j u d g e s h o u l d be
qualified to be appointed a s a J u d g e of the S u p r e m e Court. ^34
(h) Seat of t h e Supreme Court (Article 130)
Article 130 provides t h a t the S u p r e m e Court shall sit in Delhi.

However, the Chief J u s t i c e of India may, with the prior approval of the
President, require the Court to sit in s u c h other place or places a s he
m a y appoint, i^^
(i) J u r i s d i c t i o n (i.e. Powers and Functions)
(1) Original Jurisdiction of t h e Supreme Court (Article 131)
Article 131 (1) confers on the S u p r e m e Court exclusive original

jurisdiction. It provides t h a t the S u p r e m e Court shall have original
jurisdiction, to the exclusive of any other court, in a d i s p u t e provided
the following conditions are complied with. These are:i36
13^ Kailash Rai, The Constitutional Law of India, 4 3 8 (2011)

133 Supra n. 126 at 442.
'34 Supra n. 121 at 492.
135 Id. at 4 9 1 .
136 Id. at 4 9 6 .
71
I. The Dispute must be
i. between the Government of India and one or more States;

or
ii. between the Government of India and any State or State

on one side and one or more States on the other; or
iii. between two or more States.
II. The dispute must involve any question (whether of law or fact)
on which the existence or extent of a legal right depends.
(2) Appellate Jurisdiction
The Supreme Court is the highest court of appeal in the country

from the decision of High Courts and other tribunals. The writ and
decrees of this court run throughout the country. The appellate
jurisdiction can be divided into three categories: ^37
I. Appellate Jurisdiction of Supreme Court in Appeals from

High Courts in certain Matters (Article 132)
An appeal shall lie to the Supreme Court from any judgement, decree
or final order of a High Court in the territory of India, whether in a
civil, criminal or other proceeding, if the High Court certifies under
Article 134-A that the case involves a substantial question of law as to
the interpretation of the Constitution.
II. Appellate Jurisdiction of Supreme Court in Appeals from

High Courts Regarding Civil Matters (Article 133)
Article 133 (1) provides that an appeal shall lie to the Supreme
Court from any judgement, decree or final order in a civil proceedings
of a High Court in the territory of India if the High Court certifies
under Article 134-A.
i. that the case involves a substantial question of law of general

importance; or
137 S.R., Myneni, Legal System in the World, 3 3 3 (2011).
72
ii. that the opinion of the High Court the said question needs to be
decided by the Supreme Court.
Article 133 (2) provides that any party may urge as one of the
grounds in such appeals under Article 132 that a substantial question
of laws as to the interpretation of the Constitution has been wrongly
d e c i d e d . 13S
Article 133 (3) provides that no appeal shall lie to the Supreme
Court from the judgement, decree or final order of a single Judge of
the High Court. However, Parliament, by law, may remove this
prohibition. No such law, as yet, has been made. 1^9
III. Appellate Jurisdiction of Supreme Court in regard to

Criminal Matters (Article 134)
Article 134 (1) of the Indian Constitution, an appeal shall lie to

the Supreme Court from any judgement, final order or sentence in a
criminal proceeding of a High Court in the territory of India if the High
Court-
i. has an appeal reversed an order of acquittal of an accused

person and sentence him to death; or
ii. has withdrawn for trial before itself any case from any court
subordinate to its authority and has in such trial convicted the
accused personal and sentenced him to death; or
iii. certified under Article 134-A that the case is a fit one for appeal
to the Supreme Court:
However, an appeal under sub clause (c) shall lie subject to

such provisions as may be made in that behalf under clause (1) of
Article 145 and to such conditions as the High Court may establish or
require. 1"*°
138 Id. at 3 3 3 .
139 Supra n. 121 at 5 0 1 .
I'lo Supra n. 137 at 334.
73
Article 134 (2) provides that Parliament may be law confer on
the Supreme Court any further powers to entertain and hear appeals
from any judgement, final order or sentence in a criminal proceeding
of a High Court in the territory of India subject to such conditions and
limitations as may be specified in such law.
(3) Exercising the Jurisdiction and Powers of the Federal Court

(Article 135)
Article 135 of the Indian Constitution says that until Parliament

by law otherwise provides, the Supreme Court shall also have
jurisdiction and powers with respect to any matters to which the
provisions of Article 133 or Article 134 do not apply if jurisdiction and
powers in relation to that matters were exercisable by the Federal
Court immediately before the comencement of this Constitution under
any existing law.i'î
(4) Special Leave to Appeal (Article 136)
Under Article 136, the Supreme Court is vested with power to

grant in its discretion special leave to appeal from any judgement,
decree, determination, sentence or order in any other cause or matter
passed by any court or tribunal in the territory of India. The only
exception to this power of the Supreme Court is with regard to any
judgement, etc. of any court or tribunal constituted by or under any
law relating to armed forces.
(5) Advisory Jurisdiction (Article 143)
The Supreme Court also possesses an advisory jurisdiction

under Article 143. Clause (1) of Article 143 provides if at any time it
appears to the President that a question of law or fact has arisen or is
likely to arise, which is of such a nature and of such public
importance that it is expedient to obtain the opinion of the Supreme
Court upon it, he may refer the question to that court for
Ibid.
74
consideration and the court may, after such hearing as it thinks fit,
report to the President its opinion thereon.
Under clause (2), if the President refers to the Supreme Court

matters which are excluded from its jurisdiction under the proviso to
Article 131 the Court Shall be bound to give its opinion thereon. 1^2
(j) Review of Judgements or Orders by the Supreme Court

(Article 137
As per Article 137 of the Indian Constitution, subject to the

provisions of any law made by Parliament or any rules made under
Article 145, the Supreme Court Shall have power to review any
judgement pronounced or order made by it.
(k) Enlargement of the Jurisdiction of the Supreme Court

(Article 138)
As per Article 138 of the Constitution, the Supreme Court may

have additional jurisdiction as Parliament may confer while legislating
in respect of any of the matters included in the Union List. The
Supreme Court may have further jurisdiction in any matter as Union
Government and the Government of any State may be special
agreement confer, if Parliament by law provides for the exercise of
such jurisdiction. ^"^^
(1) Transfer of Certain cases (Article 139-A)
Article 139-A gives power to the Supreme Court to withdraw

cases from the High Court on the application of Attorney General of
India or suo motu or on the application of the party to the case if the
Supreme Court is satisfied that case involving the same or
substantially the same questions of law are pending before it in one or
more High Courts or before two or more High Courts and that such
questions are substantial questions of General importance, the
Supreme Court may withdraw the case or cases pending before the
14^ Id. at 3 3 4 - 3 3 5
i « Supra n. 121 at 4 8 9 .
75
High Court or the High Courts and dispose of all the cases itself, i'^'*
however, the Supreme Court may after determining the said questions
of law return any case so withdrawn together with a copy of its
judgement on such questions to the High Court from which the case
has been withdrawn and the High Court shall on receipt thereof,
proceed to dispose of the case in conformity with such judgement, i'^^
Under sub-section (2) of Article 139-A, it enjoys the power to

transfer any case, appeal or other proceedings pending before any
High court to any other High Court if it is expedient for the sake of
justice.
(m) Ancillary Powers of Supreme Court (Article 140)
According to Article 140 of the Constitution, Parliament may be

law make provision for conferring upon the Supreme Court such
supplemental powers not inconsistent with any of the provisions of
the Constitution as may appear to be necessary or desirable for the
purpose of enabling the court more effectively to exercise the
jurisdiction conferred upon it by or under this Constitution, iê
(n) Writ Jurisdiction (Article 32)
The most important power vested in the Supreme Court is the

power to issue under Article 32(2) of the Constitution the directions or
orders or writs, including writs in the nature of habeas corpus,
mandamus, prohibition, quo-warranto and certiorari which ever
may be appropriate for the enforcement of the rights conferred by the
Constitution.
(o) Rule of precedent (Law declared by the Supreme Court) to

be binding on all Courts (Article 141)
According to Article 141 of the Constitution, the law declared by

the Supreme Court shall be binding on all courts within the territory
144 Id. at 487.

145 Supra n. 137 at 335.
146 Id. at 336.
76
of India. According to the Constitution, c o u r t s other t h a n the S u p r e m e
Court m u s t observe the decisions of the later.
(p) M i s c e l l a n e o u s Provisions Article 1 4 2 t o 147^^'^
(1) As per Article 144 of t h e Constitution, all authorities, civil a n d

judicial, in t h e territory of India shall act in aid of the S u p r e m e
Court.
(2) Article 142 or the Constitution s t a t e s t h a t the S u p r e m e Court,

in t h e exercise of its jurisdiction, is empowered to p a s s s u c h
decrees of orders a s is n e c e s s a r y for doing complete justice in
any c a s e s or m a t t e r p e n d i n g before it a n d the orders shall be
enforceable.
(3) Article 145 of t h e Constitution lays down t h a t the S u p r e m e

Court is empowered to frame r u l e s with the approval of the
President, relating to t h e practice a n d procedure of the court
including r u l e s a s to the p e r s o n s practising before the court,
rules a s to the procedure for h e a r i n g a p p e a l s a n d other m a t t e r
pertaining to a p p e a l s including t h e time within which a p p e a l s to
the court are to be entered etc.
(4) According to Article 146(1) of t h e Constitution, a p p o i n t m e n t s of

officers a n d s e r v a n t s of the S u p r e m e Court shall be m a d e by the
Chief J u s t i c e of India or s u c h other j u d g e or officer of the court
a s he m a y direct.
(5) As per Article 146(3) of t h e Constitution, the administrative

expenses of the Supreme Court, including all salaries,
allowances a n d p e n s i o n s payable to or in respect of the officers
and servants of the court, shall be charged upon the
Consolidated F u n d of India a n d a n y fees or other money t a k e n
by the court shall from part of t h a t fund.
(6) Article 147 of the Constitution s t a t e s t h a t references to any

s u b s t a n t i a l question of law a s to the interpretation of this
Id. at 3 3 6 - 3 3 7 .
77
Constitution shall be construed as including references to any
substantial question of law as to the interpretation of the
Government of Indian Act, 1935 or of any order in Council or
order made thereunder, or of the Indian Independence Act,
1947 or of any order made thereunder.
B. High Courts in the States (Article 2 1 4 to 232)
The Constitution of India contains specific provisions for High
Courts in a Country, i^s The State Judiciary consists of a High Court
and a system of subordinate courts. The High Court is at the apex of
the State judicial system. The High Courts come below the Supreme
Court in India's judicial hierarchy. The institution of the High Court is
fairly old as it dates back to 1862 when under the Indian. High Courts
Act, 1861, the High Courts were established a Calcutta, Bombay and
Madras. ^^^^ In course of time, other High Courts also came to be
established.
(a) Establishment
There shall be a High Court for each State, iô Parliament may
by law establish a common High Court for two or more states or for
more States and an Union Territory.iîParliament may by law extend
the jurisdiction of a High Court to, or exclude the jurisdiction of a
High Court from, any Union Territory. i52
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 contem.pt
of itself. 153
(b) Constitution of High Court

According to Article 216 of the Constitution, every High Court
consists of a Chief Justice and such other judges as the President may
from time to time deem it necessary to appoint.
i4« See. The Constitution of India. Chapter VIII, Part-Ill.

149 M.P. J a i n , Outlines of Indian Legal History, 262-289 (2012)
^=0 Article 214 of the Constitution of India.
151 Article 231 of the Constitution of India.
1=^ Article 230(1) of the constitution of India.
1=3 Article 215 of the Constitution of India.
78
(c) A p p o i n t m e n t of J u d g e s
The High Court J u d g e s are appointed by the President after

consulting t h e Chief J u s t i c e of India, the Governor of the State
concernedi54 a n d , in case of a p p o i n t m e n t of a j u d g e other t h a n the
Chief J u s t i c e , the Chief J u s t i c e of the High Court to which the
a p p o i n t m e n t is to be m a d e a n d , in case of a p p o i n t m e n t of a j u d g e
other t h a n t h e Chief J u s t i c e , the Chief justice of the High Court to
which t h e a p p o i n t m e n t is to be made.iss
(d) Qualifications
According to t h e Article 217(2) of the Constitution, a person

shall n o t be qualified for a p p o i n t m e n t a s a J u d g e of a High Court
u n l e s s h e is a citizen of India andiê.
(1) h a s for a t least ten years held a judicial office in t h e territory of

India; or
(2) h a s for a t least ten years been a n advocate of a High Court or of

two or more s u c h c o u r t s in succession;
Unlike t h e S u p r e m e Court, the Constitution m a k e s no provision

for a p p o i n t m e n t of a j u r i s t a s a High Court J u d g e .
(e) A p p o i n t m e n t of Acting Chief J u s t i c e , Additional and Acting

J u d g e s a n d Retired J u d g e s at S i t t i n g s of High Courts
The President c a n appoint a n acting Chief J u s t i c e u n d e r Article

2 2 3 of t h e Constitution in the a b s e n c e of the Chief J u s t i c e of a High
Court. When there is a r r e a r s of work d u e to temporary increase in the
b u s i n e s s of a High Court, the President c a n appoint additional a n d
acting J u d g e s a n d s u c h person shall not hold office after attaining the
154 In case of a c o m m o n High Court for two or more States, the Governor of all the
S t a t e s concerned are consulted u n d e r Article 231(2).
155 Article 217(1) of the Constitution of India.
'56 To c o m p u t e the period of ten years, the periods for which a person h a s held a
judicial office, been a n advocate of a High Court, been a m e m b e r of a Tribunal or
held any post u n d e r the Centre or State requiring special knowledge of law have
to be counted; Expl.(a) a n d (aa) to Art. 217(2).
79
age of sixty two years as per Article 224 of the Constitution. ^57 As per
Article 224-Aof the Constitution, the Chief Justice of a High Court for
any state may at any time, with the prior consent of the President,
request any retired judge to act as a judge.
(f) Oath or Affirmation by Judge of High Courts
According to Article 219 of the Constitution, every person

appointed to be a judge of a High Court shall make an oath according
to the form set out for the purpose in the third Schedule of the
Constitution.
(g) Restriction on Practice After Being a Permanent Judge
Article 220 of the Constitution says that 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, ^^s ^ s per the explanation to the Article 220, 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
commencement of the Constitution (Seventh Amendment) Act, 1956.
(h) Salaries and Allowances of Judges
As per Article 221 of the Constitution, there shall be paid to the

judge 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. ^59 Further
Parliament of empowered to determine by law such matters as
allowances payable to a High Court judge as his rights in respect of
leave of absence and pension.
(i) Tenure, Resignation and Removal of a Judge
Under Article 217 of the Constitution, a judge of the High Court

has been guaranteed security of tenure. He may hold his office till the
157 Supra n. 137 at 337-338.

158 Supra n. 120 at 379.
159 Supra n. 121 at 574.
80
age of sixty two years. A Judge may resign his office at any time by
writing under his hand addressed to the President, iô
A Judge of a High Court 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. Accordingly a Judge of a
High Court cannot be removed from his office except by an order of
the President passed after an address by each House of Parliament
supported by a majority of the total membership of that House and by
a majority of not less than two-third of the members of that House
present and voting, has been presented to the President in the same
session for such removal on the ground of proved misbehaviour or
incapacity. 161
(j) Transfer of a Judge from One High Court to Another
As per Article 222 of the Constitution the President may, after

consultation with the Chief Justice of India, transfer a judge from one
High Court to any other High Court. When a judge has been or is so
transferred, he shall be serves, after the commencement of the
Constitution (15^ Amendment) Act, 1963, as a Judge of the other
High Court, be entitled to receive in addition to his salary such
compensatory allowances as may be determined by Parliament by law
and, until so determined by Parliament by law and, until so
determined, such compensatory allowance as the President may be
order fix.^^^
(k) Jurisdiction (Powers and Functions) of the High Court
Every High Court is a Court of Record and is possessed of

original, appellate and supervisory jurisdiction. Article 225 of the
Constitution lays down that the jurisdiction of, and the law
administered in any existing High Court, and respective powers of the
judges thereof in relation to the administration of justice in the court.
>60 Clause (a) of Proviso to Clause (1) of Article 217. of the Constitution of India.
161 Article 217(1) (b) a n d 124(4) a n d (5).
16^ Supra n. 137 at 339.
81
including any power to make rules of court and to regulate the sitting
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. ^63 The Constitution confers on every High Court the
following jurisdiction:-
(1) The Writ Jurisdiction
A very significant aspect of the Indian Constitution is the

jurisdiction; it confers on the High Courts to issue writs. The writs
have been among the great safeguards provided by the British Judicial
System for upholding the rights and liberties of the people. i64Article
226 of the Constitution lays down that every High Court shall have
powers, throughout the territories in relation to which it exercises
jurisdiction, to issue to any person or authority, including in
appropriate cases, any government, with in those territories
directions, order or writs, including 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-Ill and for any other purpose.
The writ power may also be exercised by any High Court

exercising jurisdiction in relation to the territories within which the
cause of action, wholly or on 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.
The writ power conferred on a High Court is not in derogation of

the power conferred on the Supreme Court by clause (2) of Article 32.
It is of interest to note that the power to issue writs given to the High
Courts is wider than given to the Supreme Court under Article 32 of
the Constitution. So far as the enforcement of the fundamental rights
is concerned, the power of the High Court is concurrent with the
power of the Supreme Court, but in regard to the enforcement of non-
163 Ibid.
iM Supra n. 120 396.
82
fundamental rights, it is exclusively given to the High Courts.
However, u n d e r Article 139 of Constitution, Parliament by law is
empowered to confer on the S u p r e m e Court power to i s s u e directions,
orders or writs including prerogative writs for a n y p u r p o s e s other t h a n
those given by Article 32(2). 1^5
(2) Power of S u p e r i n t e n d e n c e over all Courts
Article 2 2 7 of the Constitution confers u p o n the High Court the

power of s u p e r i n t e n d e n c e over the c o u r t s s u b o r d i n a t e to it. It provides
t h a t every High Court shall have s u p e r i n t e n d e n c e over all C o u r t s a n d
Tribunals t h r o u g h o u t t h e territories in relation to which it exercises
jurisdiction. 166 in the exercise of this power the High court mayi^?-
(a) call for r e t u r n s from s u c h c o u r t s ;
(b) m a k e a n d issue general rules a n d prescribe forms for regulating

the practice a n d proceedings to s u c h courts; a n d
(c) Prescribe forms in which books, entries a n d a c c o u n t s shall be

kept by the officers of a n y s u c h Courts.
The High Court m a y also settle tables of fees to be allowed to the

sheriff a n d all clerks a n d officers of s u c h c o u r t s a n d to attorneys,
advocates a n d pleaders practising therein. ^^^ However, the power of
s u p e r i n t e n d e n c e conferred by Article 227(1) on a High Court "does not
extend over any court or tribunal constituted under any law relating to
the armed forces."^^"^
(3) Transfer of Certain t o High Court
Article 2 2 8 of the Constitution empowers the High Court to with

draw t h e c a s e s if it is satisfied t h a t a case pending in a court
s u b o r d i n a t e to it involves s u b s t a n t i a l question of law a s to the
165 Supra n. 137 at 3 4 0 .

166 Supra n. 121 at 5 8 8
16V Clause (2) of Article 2 2 7 .
168 Clause (3) of Article 227.
169 Clause (4) of Article 227.
83
interpretation of this Constitution and the determination of which is
necessary for the disposal of the case. The High court may-iô
I. either dispose of the case itself; or
II. 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 judgement as such question, and the said court
shall on receipt thereof proceed to dispose of the case in
conformity with such judgement.
(4) Power to Punish for Contempt
According to Article 215 of the Constitution, the High Court can

punish persons for Contempt of Court. In the Contempt of Court
proceedings, the High Court is empowered to decide the matter
summarily according to its own procedure and is not bound by the
provisions of Criminal Procedure Code.i'î
(5) Appellate Jurisdiction
I. Appeals in Civil Cases
The High Court has been given power to hear appeals in civil
cases under the provisions of Part-VII and VIII of the Civil Procedure
Code. 172
II. Appeals in Criminal Cases
The High court has been given power to hear appeals in criminal
under the provisions of Parts XXIX and XXX of the Criminal Procedure
Code. 173
III. Issue of Certificate for Appeal to the Supreme Court
As per Article 134-A which was inserted by the Constitutional

(44th Amendment) Act, 1975, it is the function of the court to issue a
certificate for appeal if it deems fit to do so. But if the High Court has
™
' Supra n. 137 at 340-341.
171 Ibid.
'7^ Supra n. 132 at 558.
173 Ibid.
84
reserved the under of conviction and has ordered the acquittal of an
accuses, no appeal would lie to the Supreme Court, i'^'*
rv. Subordinate Courts in Indian Judiciary
In each State there is a system of subordinate courts below the

High Court. The Constitution makes provisions in Articles 233 to 237
to regulate the organization of these courts and to ensure
independence of the subordinate judges.
The Supreme Court has emphasized again and again on the

maintenance of independence and integrity of the subordinate
judiciary which is closest to the people. Accordingly, the Court has
through its various decisions promoted the independence of these
courts from executive control and, to this effect, has expanded the
control of the High Courts over the subordinate judiciary, so as to
strengthen the independence of the subordinate courts from executive
control. Therefore, the subordinate judiciary constitutes a very
important segment of the judicial system as it is in those courts that
the judiciary comes in close contact with the people. It is essential to
maintain the independence and integrity of the subordinate judiciary
and for this purpose Article 233 to 237 have been placed in the
Constitution. These articles have been so interpreted by the Supreme
Court as to strengthen the control of the High Courts on the
subordinate judiciary. It is thus incumbent on each High Court to
maintain and uphold the honour and integrity of the subordinate
judiciary in the concerned state.
The Constitution contemplates that each State should have a

distinct class of service, to be known as the judicial service, which
would consist exclusively of persons intended to till the post of District
Judges and other subordinate civil posts below the District Fudge.I'^s
174 Supra n. 137 a t 3 4 1 .

175 Id. at 3 4 7 .
85
i. Appointment of District Judges
The Constitution makes provisions for the appointment of

District Judges and persons other than District Judges to the judicial
service of the States, iê Appointments of persons to be, and the
posting and promotion of District Judges in any State is made by the
Governor of the State in consultation with the High Court exercising
jurisdiction in relation to such State, i^^ A person not already in the
service of the Union or of the State shall only be eligible to be
appointed District Judge if he has been for not less than seven years
an advocate, or a pleader and is recommended by the High Court for
appointment. ^'^^ The appointment of persons other than the District
Judges to the judicial service of the state shall be made by the
Governor of the State in consultation with the State Public Service
Commission and the High Court the State, i"^^
ii. Control over Subordinated Courts
As per Article 235 of the Constitution, the control over District

Courts and courts subordinate thereto including the posting and
promotion of, and the grant of leave to, persons belonging to the
judicial service of the State and holding any post inferior to the post of
District Judge shall be vested to the High Court: but nothing in this
article shall be construed as taking away from any such person any
right of appeal which he may have under the law regulating the
conditions of his service or as authorising the High Court to deal with
him otherwise than in accordance with the conditions of his service
prescribed under such law.iô
'Control' under Article 235 signifies control over the conduct

and discipline of the judges. The 'control' includes both disciplinary
and administrative jurisdiction. The control over subordinate judiciary
176 K.C.Joshi, The Constitutional Law of India, 434 (2011)

1" Clause (1) of Article 2 3 3 .
178 Clause (2) of Article 2 3 3 .
179 Article 234 of the Indian Constitution.
180 Supra n. 137 at 3 4 8 - 3 4 9 .
86
is vested in the High Court to secure its independence. The High
Courts can hold enquiries and impose punishment over judicial
officers short of dismissal or removed which are covered under Article
311 of the Constitution.
According to Article 236(a) the expression " District Judge'

include Judge of a City Civil Court, Additional District Judge, Joint
District Judge, Chief Judge of a small Cause Court, Chief Presidency
magistrate. Additional Chief Presidency Magistrate, Session Judge,
Additional Session Judge and Assistant Session Judge, iî
Clause (b) of Article 236 defines the expression "judicial

service" to mean a service consisting exclusively of persons intended
to the post of District Judge and other Civil Judicial post inferior to
the post of District Judge.^^2
iii. Criminal Judiciary
Ordinarily, the magistracy is under the control of the State

Executive. However, separation of the judiciary from the executive
being an accepted policy objective. Article 237 gives power to the State
Executive to direct, by a public-notification, that any of the above-
mentioned constitutional provisions relating to persons in the State
Judicial Service (Articles 233 to 235) will apply to any class of
magistrates in the State with such exceptions and modifications as it
may deem fit. This Article thus makes a flexible arrangement and
enables a State to take measures progressively to secure the control of
the High Court over the magisterially as well.i^^
IV. Sum-Up
The foregoing study reveals that the members of Constituent

Assembly were very much concerned with the question of
independence of the judiciary and, accordingly, made several
provisions to ensure this end. The Supreme Court has itself laid
181 Supra n. 121 a t . 5 9 4 .

18^ Ibid.
183 Supra n. 120 at 4 4 8 .
87
emphasis on the independence of the judiciary from time to time.
Therefore, the Constitution established an independent judiciary. It
has been given wide power and jurisdiction to protect the rights of the
citizens and also of the States.
The Indian judiciary is a watchdog of constitutional liberties

guaranteed to the people of India. Thus, the whole judicial system in
modem India is organized on hierarchical pattern. At the apex, there
is a Supreme Court, and then come the High Courts of which there is
one in each State. Below the High Courts, there are subordinate civil
and criminal courts. The study of the constitutional provisions
regarding organization of judicial system in post-constitutional period
also testify the fact that we have three tier judicial system which is
working in India since the commencement of the Constitution till date.
The court has played an extremely creative role in keeping the
responsible and the parliamentary system of government in proper
working order, in maintaining the federal balance, in protecting the
fundamental rights of the people. The court has endeavoured to
promote a welfare state in India.
88

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CHAPTER-2

ORGANISATION OF JUDICIAL SYSTEM IN PRE AND

The judicial system of a country at a given time is not the

II. Judicial System Prior to Independence

In fact, the subject judicial system cannot be studied properly,

1 M.P. J a i n Outlines of Indian Legal History 8s Constitutional History, 1 (2012).

(i) Vedic Period

India has the oldest judiciary in the world. No other judicial

A. Judiciary in Ancient India

According to the Artha-Shastra of Kautilya, who is generally

B. Hierarchy of Courts in Ancient India

According to Brihaspati Smiriti, there was a hierarchy of courts

During the ancient Hindu Period, the King was regarded as

Justice was administered at village level by a local village

**First come the family arbitrators; the Judges are superior

Criminal cases were ordinarily presented before the Central

One of the cardinal rules of the administration of justice in

(b) Institution of Lawyers

During ancient Hindu period, the institution of lawyers does not

(c) Judicial Procedure

During the ancient Hindu period, the judicial procedure was

In criminal cases, sometimes circumstantial evidence was

(d) Appointment of Judges and Judicial Standard

As per the text available caste considerations played dominant

(e) Trial by Jury

The jury system thought it was in existence in ancient Hindu

(f) Trial by Ordeal

In fact, it was a method to determine the guilt of a person. Trial

1^ S.S. D h a v a n , Indian J u r i s p r u d e n c e , Vol. VIII (1963) Journal of the National

(g) Crimes and Punishments

In ancient Hindu period punishment was considered to be a sort

Certain classes of persons were exempted from punishment

Under the ancient criminal law, criminals were required to pay a

C. Delegation of Judicial Power by the King

As civilization advanced, the King's functions became more

The qualifications prescribed for a judge were very high.

D. Quality of the Judiciary

The foremost duty of a judge was integrity which included

E. Punishment for Corruption

Corruption was regarded as a heinous offence and all the

(ii) Judicial System in Medieval India

A. The Sultanate of Delhi

B. The Mughal Empire

In Sultanate system the Sultan after ascending the throne of

(a) The Administration of Justice-Constitution of Courts

There were established six courts at the capital of the

Adalat Quzi-e-Subah was the next court in order of gradation. It

25 Rajneesh K u m a r Patel, Administration of Justice in India, Ethics and

3) Courts at District Level

In each district (Sarkar), at the district headquarter, six courts

The court of the District Qazi was empowered to hear all

B. Judicial System during Mughal Period

In India the Mughal period begins with the victory of Babar in

(a) The Imperial Capital

34 J.N Sarkar, Mughal Administration, 72(1935).

The Chief Justice and other Judges were appointed by the

(iii) Judicial System during British Period

In order to study the present judicial system, one has to

As per the historical record the British came to India as traders,

38 S.C.Tripathi, Indian Legal a n d Constitutional History, 16(2011).

A. The Judicial System Set-Up in Presidencies (1774-1861)

In the Presidency Towns of Bombay and Madras, the judicial