Indian Constitutional Law: The Powers and Role of the Supreme Court of India and the High Courts of India

By:

Ramni Taneja[1]

“The beauty of the Indian Constitution is that the entire structure of the country is based thereupon. It is the very pillar upon which the democracy of India stands”[2].

These eloquent words aptly summarise the letter and spirit of the Constitution of India.

India has a sophisticated legal system, with a written Constitution. Each State has its own hierarchy of civil and criminal Courts. Each State has a High Court. The Supreme Court of India (SCI), which is the highest court of appeal in India has played a very significant role in interpreting the Constitution and in maintaining a just and fair balance between the rights of citizens/persons and the requirements of the State.

The law declared by the SCI is binding on all the courts in India[3] thereby reflecting the incorporation of the doctrine of precedent, (as understood in English jurisprudence).

The SCI exercises, inter alia, the following jurisdictions deriving its powers to do so under the Constitution of India: original jurisdiction [Article131], appellate civil jurisdiction [Articles 132 and 133], appellate criminal jurisdiction [Articles 132 and 134]. Special Leave Petitions are filed under Article 136 of the Constitution of India. It also has review jurisdiction [Article 137].

Article 32(2), which is the cornerstone of fundamental rights is couched in the following clear terms:

“The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.”

Since the establishment of the Supreme Court of India in 1950, it has pronounced noteworthy decisions, which have left their imprimatur in constitutional and international jurisprudence. It has delivered judgements on many legal subjects: i.e. constitutional law, fundamental rights, human rights, environmental law, private and public international law, to name a few, and of course, the famous concept of public interest litigation (PIL). It is renowned for its “judicial activism”, an expression that has often been the subject of continuing debate.

The expression ‘PIL’ has been considered in a few judgements of the Supreme Court of India. A trenchant description of a PIL, is given in Kushum Lata v. Union of India[4]:

“Public interest litigation which has now come to occupy an important field in the administration of law should not be ‘publicity interest litigation’ or ‘private interest litigation’ or ‘politics interest litigation’ … The courts of justice should not be allowed to be polluted by unscrupulous litigants by resorting to the extraordinary jurisdiction.”

The right against custodial violence was upheld by the Supreme Court of India in Nilabati Behera v. State of Orissa.[5] In this case, the court while reiterating the availability of some fundamental rights to arrested persons and detainees especially those available under Article 21, further held that “for violation of the Fundamental Rights to life or basic human rights, the defence of sovereign immunity is not available to the state for the established violation of the rights guaranteed by the Constitution of India under Article 21”.

The rights of an arrested person were considered in D.K. Basu v. State of West Bengal[6]. The SCI has given various directions concerning the rights available to arrested persons, which directions have to be followed by various State authorities.

In Vishaka v. State of Rajasthan[7], the SCI has laid down guidelines for the prevention of sexual harassment of women in the workplace. This has ultimately led to the enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

The High Court of any State in India is at the head of a State’s judicial administration. Article 226 of the Constitution of India states that notwithstanding anything in Article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs. The High Courts in India have been extremely active in protecting the rights of citizens and persons under Article 226.

To conclude this very brief overview, I am reminded of the erudite speech on Law Day on 26 November 2011 given by the SC of India’s former Chief Justice S H Kapadia:

“Judicial independence is one of the essential elements of Rule of Law. Every civilized society has seen the need for an impartial and independent judiciary. The principle of Judicial Independence has acquired renewed significance, since the Constitution of India has conferred on the Judiciary the power of judicial review. However, keeping in mind the doctrine of Separation of Powers, Judiciary has to exercise considerable restraint to ensure that the surcharged democracy does not lead to a breakdown of the working of Parliament and the Government. The Judiciary needs to work in the area demarcated by the Constitution”.

[1] Advocate, Supreme Court of India, New Delhi

[2] Chief Justice of India, Mr Justice  V. N. Khare in Union of India vs. Naveen Jindal:  2004 2 SCC 510 paragraph 27

[3] Article 141 of the Constitution of India

[4] (2006) 6 SCC 180

[5] 1993 SCR (2) 581

[6] (1997) 1 SCC 216

[7] (1997)  6 SCC 241