3.4 Union & State Judiciary, Subordinate Courts & Amendments
Key Takeaways
- The Supreme Court's judicial architecture (Articles 124-147) spans exclusive federal original jurisdiction (Article 131), wide appellate powers, and plenary discretionary review under Article 136.
- Judicial appointments evolved across the Four Judges Cases, invalidating the NJAC (99th Amendment) to preserve judicial primacy and independence as an unalterable basic structure component.
- Subordinate court appointments are strictly demarcated under Articles 233 and 234, while Article 235 vests complete administrative and disciplinary control exclusively in the High Court.
- High Court supervisory jurisdiction under Article 227 is distinct from Article 226 writ jurisdiction, operating as a supervisory power over courts and tribunals to prevent jurisdictional usurpation.
- Article 368 provides three distinct amendment procedures, with the Basic Structure doctrine (Kesavananda Bharati) establishing a permanent substantive check on constituent power from 24 April 1973.
3.4 Union & State Judiciary, Subordinate Courts & Amendments
[!NOTE] Judicial Service High-Yield Module: For candidates appearing for the Maharashtra Civil Judge (Junior Division) & JMFC Examination, Articles 233 to 237 (Subordinate Courts) represent direct statutory and professional rules. In addition, questions systematically examine the jurisdictional boundaries of the Supreme Court (Articles 131, 136, 141, 142, 143), the Collegium evolution, the distinction between Articles 226 and 227, and the amendment mechanisms under Article 368 under the Basic Structure doctrine.
The Union Judiciary: The Supreme Court of India (Articles 124-147)
Part V, Chapter IV of the Constitution sets out the composition, jurisdiction, and powers of the Supreme Court of India.
Establishment and Tenure (Article 124)
- Article 124(1): Establishes 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. Through successive Parliamentary acts, the current sanctioned strength is 34 Judges (including the Chief Justice of India).
- Qualifications (Article 124(3)): A citizen of India who has been:
- A Judge of a High Court (or of two or more such courts in succession) for at least five years; OR
- An Advocate of a High Court (or successive High Courts) for at least ten years; OR
- In the opinion of the President, a distinguished jurist (Note: A distinguished jurist is eligible for appointment to the Supreme Court, but NOT to a High Court under Article 217).
- Removal of Judges (Article 124(4) & (5)): A Judge of the Supreme Court can be removed only by an order of the President passed after an address by each House of Parliament supported by a special majority (a majority of the total membership of that House and a majority of not less than two-thirds of the members present and voting) presented in the same session, on grounds of proved misbehavior or incapacity under the Judges (Inquiry) Act, 1968.
Evolution of Judicial Appointments: The Four Judges Cases
The Collegium Chronology
1981: First Judges Case (S.P. Gupta) ──────> Executive Primacy ('Consultation' != 'Concurrence')
│
1993: Second Judges Case (SCARA) ──────────> Judicial Primacy; Collegium of CJI + 2 Senior Judges
│
1998: Third Judges Case (Special Ref. 1) ──> Expansion to CJI + 4 Senior-most Puisne Judges
│
2014: 99th Amendment / NJAC Act ───────────> Executive & Civil Society seat on appointment commission
│
2016: Fourth Judges Case (NJAC Invalidation)> NJAC Struck Down; Primacy is Basic Structure
- First Judges Case (S.P. Gupta v. Union of India, 1981): A Seven-Judge Bench held that the word 'consultation' in Article 124(2) does not mean 'concurrence'. The ultimate power of appointment was vested in the Central Government (Executive Primacy).
- Second Judges Case (Supreme Court Advocates-on-Record Association v. Union of India, 1993): A Nine-Judge Bench overruled S.P. Gupta, holding that 'consultation' implies 'concurrence'. The Chief Justice of India must be given primacy, acting in consultation with the two senior-most puisne judges of the Supreme Court, creating the Collegium system.
- Third Judges Case (In re Special Reference No. 1 of 1998): Answering a Presidential reference under Article 143, a Nine-Judge Bench unanimously expanded the Supreme Court Collegium to the CJI and the four senior-most puisne judges for Supreme Court appointments, and the CJI and two senior-most judges for High Court appointments and transfers.
- Fourth Judges Case (Supreme Court Advocates-on-Record Association v. Union of India, 2016 5 SCC 1): A Five-Judge Constitution Bench struck down the 99th Constitutional Amendment Act, 2014 and the National Judicial Appointments Commission (NJAC) Act, 2014. The Court held that judicial primacy in appointments forms an integral part of the independence of the judiciary, which is an inviolable basic structure feature that cannot be diluted by executive presence.
Complete Jurisdictional Spectrum of the Supreme Court
| Article | Jurisdiction | Core Characteristics & Statutory Limits |
|---|---|---|
| Article 129 | Court of Record | Has all powers of such a court, including the power to punish for contempt of itself (In re Vinay Chandra Mishra, 1995). |
| Article 131 | Original Exclusive Jurisdiction | Exclusive federal disputes between: (a) Government of India and one or more States; (b) Union and any State(s) on one side and other State(s) on the other; (c) Two or more States. Excludes: Disputes arising out of pre-Constitution treaties (proviso), inter-state river water disputes (Article 262), and matters referred to the Finance Commission (Article 280). |
| Articles 132-134 | Appellate Jurisdiction | Constitutional matters (132), Civil appeals on substantial question of law of general importance (133), and Criminal appeals (134) (where High Court reverses acquittal to death sentence, or certifies fitness). |
| Article 136 | Special Leave Petition (SLP) | Extraordinary, plenary, discretionary appellate power against any judgment, decree, sentence, or order in any cause or matter passed by any court or tribunal in India. Exception (136(2)): Does not apply to any judgment or order passed by any court or tribunal constituted by or under any law relating to the Armed Forces. |
| Article 137 | Review Jurisdiction | Power to review any judgment pronounced or order made, subject to rules under Article 145 and parliamentary law. |
| Article 141 | Binding Precedent | The law declared by the Supreme Court shall be binding on all courts within the territory of India. |
| Article 142 | Plenary Justice Powers | Power to pass any decree or order necessary for doing complete justice in any cause or matter pending before it. |
| Article 143 | Advisory Jurisdiction | President may refer questions of law or fact of public importance. Under Clause (1) (general questions), the Supreme Court may give or decline an opinion (Ayodhya Reference, 1994). Under Clause (2) (pre-Constitution treaties excluded under Art. 131 proviso), the Supreme Court is bound to give its opinion. |
Curative Petitions: Rupa Ashok Hurra v. Ashok Hurra (2002)
In Rupa Ashok Hurra v. Ashok Hurra (2002) 4 SCC 388, the Supreme Court evolved the remedy of a Curative Petition under Articles 137 and 142 to prevent abuse of its process and cure gross miscarriages of justice after a review petition has been dismissed. A curative petition is entertained only upon exceptional grounds: (1) Manifest violation of natural justice (e.g., petitioner was not heard); or (2) Undisclosed judicial bias. It must be certified by a Senior Advocate and circulated to the three senior-most judges and the judges who passed the original order.
The State Judiciary: High Courts (Articles 214-231)
- Article 214: There shall be a High Court for each State (Parliament may establish a common High Court for two or more States under Article 231, e.g., Bombay High Court for Maharashtra and Goa).
- Article 215: High Courts to be Courts of Record with contempt powers.
- Article 217: Appointment of High Court Judges by the President after consultation with the CJI, the Governor of the State, and the Chief Justice of the High Court.
- Article 222: Transfer of a Judge from one High Court to another by the President after consultation with the CJI.
Article 227: Power of Superintendence
Under Article 227, every High Court exercises superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction (excluding military tribunals under Article 227(4)).
+─────────────────────────────────────────────────────────────────────────────+
| Article 226 vs. Article 227 |
+─────────────────────────────────────────────────────────────────────────────+
| ARTICLE 226 (Writ Jurisdiction) | ARTICLE 227 (Supervisory Jurisdiction) |
|─────────────────────────────────────────|───────────────────────────────────────────|
| Primarily judicial / remedial remedy | Both administrative AND judicial oversight|
| Directs writs to authorities & tribunals| Directs supervisory control over tribunals|
| | and lower courts |
| Can issue writs for any legal purpose | Exercised sparingly to keep courts within |
| | the bounds of their jurisdiction |
| Original proceeding on petition | Can be exercised suo motu by High Court |
+─────────────────────────────────────────────────────────────────────────────+
In Radhey Shyam v. Chhabi Nath (2015) 5 SCC 423, overruling Surya Dev Rai (2003) in part, the Supreme Court clarified that judicial orders of an inferior civil court are not amenable to writ jurisdiction under Article 226; challenge against such civil court orders lies exclusively under the supervisory jurisdiction of Article 227.
The Subordinate Courts (Articles 233-237)
Articles 233 to 237 of Part VI establish the constitutional charter for the subordinate judiciary, directly preserving the institutional independence of District Judges and Judicial Magistrates from executive encroachment.
Subordinate Judiciary Triad
│
┌────────────────────────────┼────────────────────────────┐
▼ ▼ ▼
Article 233 Article 234 Article 235
Appointment of District Recruitment of Civil Control over Subordinate
Judges Judges (JD) & JMFC Courts
- By Governor in - By Governor in - VESTED IN HIGH COURT
consultation with HC consultation with HC exclusively
- Direct Bar Recruitment: and State PSC (MPSC) - Postings, promotions, leave,
Min. 7 Years Practice discipline, suspensions
Article 233: Appointment of District Judges
- Article 233(1): Appointments, postings, and promotions of District Judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State.
- Article 233(2) (Direct Recruitment from the Bar): A person not already in the service of the Union or of the State shall only be eligible to be appointed a 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.
- Dheeraj Mor v. High Court of Delhi (2020) 7 SCC 401: The Supreme Court held that judicial officers already in the subordinate judicial service cannot compete for the direct Bar quota under Article 233(2) based on their prior 7-year advocacy experience; direct recruitment is strictly reserved for continuous practicing advocates.
Article 234: Recruitment of Judicial Officers (Civil Judge JD & JMFC)
Appointments of persons other than District Judges to the judicial service of a State are made by the Governor in accordance with rules made by him in that behalf after consultation with the State Public Service Commission (Maharashtra Public Service Commission - MPSC) and with the High Court (High Court of Judicature at Bombay).
Article 235: Control Over Subordinate Courts
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 a State and holding any post inferior to the post of District Judge, shall be vested in the High Court.
- In State of West Bengal v. Nripendra Nath Bagchi (1966), the Supreme Court held that 'control' under Article 235 is comprehensive, encompassing disciplinary control, conduct of domestic inquiries, suspension, and transfers. While the Governor remains the formal appointing authority who passes formal dismissal orders, the Governor is constitutionally bound by the recommendation of the High Court.
Constitutional Amendments: Article 368 & Basic Structure Doctrine
Part XX contains a single Article—Article 368—which confers constituent power on Parliament to amend the Constitution by way of addition, variation, or repeal.
Three Procedures of Amendment Under the Constitution
+─────────────────────────────────────────────────────────────────────────────+
| Three Amendment Modes under the Scheme |
+─────────────────────────────────────────────────────────────────────────────+
| 1. SIMPLE MAJORITY (Outside Article 368) |
| • Applicable to: Formation of new States (Arts 2-4), abolition/creation |
| of Legislative Councils (Art 169), 5th and 6th Schedules. |
| • Requires: More than 50% of members present and voting. |
|─────────────────────────────────────────────────────────────────────────────|
| 2. SPECIAL MAJORITY UNDER ARTICLE 368(2) |
| • Applicable to: Fundamental Rights, Directive Principles, and general |
| provisions not covered by Proviso. |
| • Requires: (a) Majority of the TOTAL membership of each House; AND |
| (b) Not less than 2/3 of members PRESENT AND VOTING in each House. |
|─────────────────────────────────────────────────────────────────────────────|
| 3. SPECIAL MAJORITY + STATE RATIFICATION (Proviso to Article 368(2)) |
| • Applicable to entrenched federal provisions: |
| - Election of President (Articles 54 & 55) |
| - Extent of executive power of Union and States (Articles 73 & 162) |
| - Supreme Court & High Courts (Arts 124-147, 214-231, 241) |
| - Legislative Relations between Union and States (Chapter I, Part XI) |
| - Any of the Lists in the Seventh Schedule |
| - Representation of States in Parliament |
| - Provisions of Article 368 itself |
| • Requires: Special majority in Parliament PLUS ratification by not less |
| than ONE-HALF OF THE STATE LEGISLATURES by simple resolution. |
+─────────────────────────────────────────────────────────────────────────────+
Evolution of the Basic Structure Doctrine
1951: Shankari Prasad ────> Parliament can amend any part including Part III
│
1965: Sajjan Singh ───────> Reaffirmed Shankari Prasad; Hidayatullah doubts
│
1967: Golak Nath ─────────> 11 Judges (6:5); Part III is sacrosanct; cannot amend
│
1971: 24th Amendment ─────> Parliament amends Art 13 & 368 to bypass Golak Nath
│
1973: Kesavananda Bharati ─> 13 Judges (7:6); Overruled Golak Nath; established
│ BASIC STRUCTURE DOCTRINE as substantive limit
▼
1975: Indira Nehru Gandhi ─> Struck down Art 329A(4) (Democracy/Rule of Law)
│
1980: Minerva Mills ───────> Struck down Art 368(4)-(5) (Unlimited Amending Power)
│
1981: Waman Rao ───────────> Basic structure applied prospectively from 24 April 1973
- Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225: A historic Thirteen-Judge Bench held by a 7:6 majority that while Parliament has wide constituent power under Article 368 to amend any provision of the Constitution (including Fundamental Rights), this power does not extend to altering, damaging, or destroying the Basic Structure or essential features of the Constitution.
- Indira Nehru Gandhi v. Raj Narain (1975): First practical application of the doctrine to invalidate a constitutional amendment. The Supreme Court struck down Clause (4) of Article 329A (inserted by the 39th Amendment Act, 1975), which sought to place the election of the Prime Minister and Speaker beyond judicial review, holding that democracy, free and fair elections, rule of law, and judicial review are basic structure features.
- Minerva Mills Ltd. v. Union of India (1980): Clauses (4) and (5) of Article 368, which had been inserted by the 42nd Amendment to grant Parliament unlimited amending power and exclude judicial review of constitutional amendments, were struck down as void. The Court held that a limited amending power is itself an essential feature of the Basic Structure; the creature of the Constitution cannot become its master.
In which decision did the Supreme Court strike down the 99th Constitutional Amendment Act, 2014 and the National Judicial Appointments Commission (NJAC) Act as unconstitutional?
Under Article 233(2) of the Constitution of India, what is the minimum qualifying standing required for an advocate or pleader to be eligible for direct recruitment as a District Judge?
What type of majority is required under Article 368 to pass a constitutional amendment that alters the representation of States in Parliament or amends the provisions governing the Union Judiciary?
In landmark jurisprudence, which judgment established the remedy of a 'Curative Petition' to prevent gross abuse of judicial process and cure gross miscarriages of justice after the dismissal of a review petition?