CBSE Textbook: Judiciary : Constitutional, Civil and Criminal Courts and Processes | Legal Studies for Class 11 - Humanities/Arts PDF Download

 Page 1


UNIT I UNIT II
UNIT IV
UNIT V UNIT III
Judiciary: Constitutional, Civil and 
Criminal Courts and Processes
Contents
I. Introduction
II.  Judiciary: it’s Constitution, Roles and Impartiality 
 a. Independence and Impartiality of the Supreme Court
 b. Structure and Hierarchy of the Courts in India
 c. The Civil Process and functioning of Civil Courts
III.  The Civil Court Structure
 a. Common Legal Terminologies
 b. Types of Jurisdiction
 c. Res subjudice and Res judicata in Code of Civil Procedure, 1908
IV .  Structure and Functioning of Criminal Courts in India
 a. Types of Offences
 b. Criminal Investigations and First Information Report (FIR)
 c. Criminal Process - Investigation and Prosecution
 d. Doctrine of autrefois acquit and auterfois convict (i.e. previously acquitted or previously  
 convicted)
 e. Function and Role of Police
V .  Other Courts In India
 a. Family Courts
 b. Administrative Tribunals
VI.  Exercises
Learning Outcomes
After the completion of this chapter, the students will be able to:
• State reasons for independence and impartiality of judiciary
• Draw a flow chart of hierarchy of courts in India
• Explain legislations governing courts in India
• Distinguish between Civil and Criminal Cases
CHAPTER
1
Page 2


UNIT I UNIT II
UNIT IV
UNIT V UNIT III
Judiciary: Constitutional, Civil and 
Criminal Courts and Processes
Contents
I. Introduction
II.  Judiciary: it’s Constitution, Roles and Impartiality 
 a. Independence and Impartiality of the Supreme Court
 b. Structure and Hierarchy of the Courts in India
 c. The Civil Process and functioning of Civil Courts
III.  The Civil Court Structure
 a. Common Legal Terminologies
 b. Types of Jurisdiction
 c. Res subjudice and Res judicata in Code of Civil Procedure, 1908
IV .  Structure and Functioning of Criminal Courts in India
 a. Types of Offences
 b. Criminal Investigations and First Information Report (FIR)
 c. Criminal Process - Investigation and Prosecution
 d. Doctrine of autrefois acquit and auterfois convict (i.e. previously acquitted or previously  
 convicted)
 e. Function and Role of Police
V .  Other Courts In India
 a. Family Courts
 b. Administrative Tribunals
VI.  Exercises
Learning Outcomes
After the completion of this chapter, the students will be able to:
• State reasons for independence and impartiality of judiciary
• Draw a flow chart of hierarchy of courts in India
• Explain legislations governing courts in India
• Distinguish between Civil and Criminal Cases
CHAPTER
1
UNIT I UNIT II
UNIT IV
UNIT V UNIT III
• Explain the process of criminal investigation, inquiry and trial
• Distinguish between Cognizable and Non Cognizable offences, Bailable and Non Bailable 
offences 
• Describe the role of police
• Examine the importance of FIR in Criminal Investigation 
• Analyse the judicial structure envisaged  in the Constitution of India
I. Introduction
The aim of this chapter is, in the first place, to understand the salient features of Indian judiciary, its 
constitution, its roles and its independence. The introduction to this topic is meant to spur thoughts 
about court structure and their functions. The Indian legal system derives its authority from the 
Constitution of India and is deeply embedded in the Indian political system. The presence of judiciary 
substantiates the theory of separation of powers wherein the other two organs, viz., legislature and 
executive stand relatively apart from it.
Parliamentary democracy as envisaged in the Constitution of India works at Union and State level. 
Especially in making of law, there is direct participation of the legislature and the executive. It is the 
judiciary that safeguards the interest of citizens by not allowing the other organs to go beyond their 
role assigned in the Constitution. 
In brief, the Supreme Court of India is the logical and primary custodian of the Constitution of 
India, while also being its interpreter and guardian. Parliament enjoys the authority to amend the 
Constitution and the Supreme Court has the authority to examine the validity of constitutional 
amendments. The Supreme Court ensures that the other branches of government perform their 
responsibilities in accordance with the Constitution.
Judiciary is the final authority in interpreting legal issues and constitutional arrangements. The nature 
of democracy and development of the state depends upon how the legal system conducts itself to 
sustain the overall socio-economic and political environment.
Establishment of Supreme Court and High Courts
After India attained independence in 1947, the Constitution of India came into being on 26 January, 
1950. The transition from the Federal Court to the Supreme Court of India (SCI) was seamless. 
Justice Kania became the first Chief Justice of India. It is often said that the Supreme Court of India 
exercises jurisdiction far greater than that of any comparable court in the world.
The original Constitution of India envisaged a Supreme Court with a Chief Justice and seven puisne 
judges, while empowering the Parliament to increase the number of judges. Subsequently, the 
Parliament has the power to increase the number of judges of Supreme Court. Judges generally sit in 
smaller benches of twos or threes and form larger benches of five or more only when required to do 
so, or to settle a difference of opinion or controversy.
The Supreme Court has a threefold jurisdiction. As a federal court, it has exclusive original 
jurisdiction in any dispute arising between the Government of India and one or more states, between 
the Government of India and any state or states on one side and one or more states on the other or 
between two or more states. 
As an appellate court, the Supreme Court of India can hear appeals from the State High Courts on 
civil, criminal and constitutional matters.
The Supreme Court has also a very wide appellate jurisdiction in as much as it has the discretion 
Page 3


UNIT I UNIT II
UNIT IV
UNIT V UNIT III
Judiciary: Constitutional, Civil and 
Criminal Courts and Processes
Contents
I. Introduction
II.  Judiciary: it’s Constitution, Roles and Impartiality 
 a. Independence and Impartiality of the Supreme Court
 b. Structure and Hierarchy of the Courts in India
 c. The Civil Process and functioning of Civil Courts
III.  The Civil Court Structure
 a. Common Legal Terminologies
 b. Types of Jurisdiction
 c. Res subjudice and Res judicata in Code of Civil Procedure, 1908
IV .  Structure and Functioning of Criminal Courts in India
 a. Types of Offences
 b. Criminal Investigations and First Information Report (FIR)
 c. Criminal Process - Investigation and Prosecution
 d. Doctrine of autrefois acquit and auterfois convict (i.e. previously acquitted or previously  
 convicted)
 e. Function and Role of Police
V .  Other Courts In India
 a. Family Courts
 b. Administrative Tribunals
VI.  Exercises
Learning Outcomes
After the completion of this chapter, the students will be able to:
• State reasons for independence and impartiality of judiciary
• Draw a flow chart of hierarchy of courts in India
• Explain legislations governing courts in India
• Distinguish between Civil and Criminal Cases
CHAPTER
1
UNIT I UNIT II
UNIT IV
UNIT V UNIT III
• Explain the process of criminal investigation, inquiry and trial
• Distinguish between Cognizable and Non Cognizable offences, Bailable and Non Bailable 
offences 
• Describe the role of police
• Examine the importance of FIR in Criminal Investigation 
• Analyse the judicial structure envisaged  in the Constitution of India
I. Introduction
The aim of this chapter is, in the first place, to understand the salient features of Indian judiciary, its 
constitution, its roles and its independence. The introduction to this topic is meant to spur thoughts 
about court structure and their functions. The Indian legal system derives its authority from the 
Constitution of India and is deeply embedded in the Indian political system. The presence of judiciary 
substantiates the theory of separation of powers wherein the other two organs, viz., legislature and 
executive stand relatively apart from it.
Parliamentary democracy as envisaged in the Constitution of India works at Union and State level. 
Especially in making of law, there is direct participation of the legislature and the executive. It is the 
judiciary that safeguards the interest of citizens by not allowing the other organs to go beyond their 
role assigned in the Constitution. 
In brief, the Supreme Court of India is the logical and primary custodian of the Constitution of 
India, while also being its interpreter and guardian. Parliament enjoys the authority to amend the 
Constitution and the Supreme Court has the authority to examine the validity of constitutional 
amendments. The Supreme Court ensures that the other branches of government perform their 
responsibilities in accordance with the Constitution.
Judiciary is the final authority in interpreting legal issues and constitutional arrangements. The nature 
of democracy and development of the state depends upon how the legal system conducts itself to 
sustain the overall socio-economic and political environment.
Establishment of Supreme Court and High Courts
After India attained independence in 1947, the Constitution of India came into being on 26 January, 
1950. The transition from the Federal Court to the Supreme Court of India (SCI) was seamless. 
Justice Kania became the first Chief Justice of India. It is often said that the Supreme Court of India 
exercises jurisdiction far greater than that of any comparable court in the world.
The original Constitution of India envisaged a Supreme Court with a Chief Justice and seven puisne 
judges, while empowering the Parliament to increase the number of judges. Subsequently, the 
Parliament has the power to increase the number of judges of Supreme Court. Judges generally sit in 
smaller benches of twos or threes and form larger benches of five or more only when required to do 
so, or to settle a difference of opinion or controversy.
The Supreme Court has a threefold jurisdiction. As a federal court, it has exclusive original 
jurisdiction in any dispute arising between the Government of India and one or more states, between 
the Government of India and any state or states on one side and one or more states on the other or 
between two or more states. 
As an appellate court, the Supreme Court of India can hear appeals from the State High Courts on 
civil, criminal and constitutional matters.
The Supreme Court has also a very wide appellate jurisdiction in as much as it has the discretion 
UNIT I UNIT II
UNIT IV
UNIT V UNIT III
109
to grant special leave to appeal under Article 136 of the Constitution from any judgment, decree, 
determination, sentence or order in any cause or matter passed or made by any court or tribunal in 
the territory of India. In addition, the Supreme Court hears a number of statutory appeals provided 
under separate legislations. 
The Supreme Court has special advisory jurisdiction in matters, which may specifically be 
referred to it by the President of India under Article 143 of the Constitution. 
Furthermore, the Supreme Court has a concurrent original jurisdiction along with the High 
Courts, for the enforcement of fundamental rights under Article 32 of the Constitution of India. The 
jurisdiction of the Supreme Court of India can be enlarged by the Parliament. 
The Supreme Court may also pass any decree or order as may be necessary for doing complete 
justice. According to Article 141 of the Constitution of India, the law declared by the Supreme Court 
shall be binding on all courts within the territory of India. 
More importantly, the Supreme Court of India exercises judicial review - the power to strike down or 
declare unconstitutional, both legislative and executive actions, which are contrary to the provisions 
of the Constitution of India, or violative of the fundamental rights guaranteed by the Constitution, 
and also on the distribution of powers between the Union and the States.
The President appoints the Judges after consultation with the Judges of Supreme Court and High 
Courts of States. Article 124 (4) confers on the President power to remove the Judges if a motion 
is passed by a special majority of each House of Parliament, on the basis of proved misbehavior or 
incapacity to discharge one’s duties.
The Supreme Court of India has the special responsibility to render justice (social, economic and 
political) and to enforce equality, liberty, dignity and the ideals of democracy, socialism, secularism 
and such other values enshrined in the Constitution of India. Professor K.T.Shah, a member of the 
Constituent Assembly observed as follows: “the judiciary is the only authority that we are going to 
set up in the Constitution to give effect to whatever hopes and aspirations, ambitions and desires, 
we may have, in making these laws and in laying down this Constitution. Even constitutional and 
legislative amendments are not immune from judicial challenges”.
In the historic Fundamental Rights case (Kesavananda Bharti case, 1973), the Supreme Court of 
India held that the power to amend the Constitution was subject to the limitation that the ‘basic 
structure’ of the Constitution cannot be taken away. This decision means that the sovereign’s power 
to change or alter the Constitution of India is subject to limitations. 
After the President’s Rule case (1994), the ‘basic structure’ doctrine was not just limited to challenges 
to constitutional validity, but was also extended to interpret the validity of exercise of power by the 
legislature and the executive.
The High Courts in various states are the apex judicial bodies of the States. There are currently 25 
High Courts in India. The bulk of the work of the High Courts consists of appeals from lower courts 
and writ petitions under Article 226 and 227 of the Constitution of India. Apart from writ petitions, 
any civil or criminal case which does not fall within the purview or ambit of the subordinate courts 
of that State, due to lack of pecuniary or territorial jurisdiction, can be heard by the High Court of 
that State. Also certain other matters or issues may be heard by the High Court as part of its original 
jurisdiction, if the law laid down by the legislature provides to that effect.
II. Judiciary: It’s Constitution, Roles and Impartiality
The Judiciary, in India, today is an extension of the British Legal System. The Supreme Court is 
the apex body, followed by 25 High Courts, which in turn supervise and govern numerous District 
Courts. 
Page 4


UNIT I UNIT II
UNIT IV
UNIT V UNIT III
Judiciary: Constitutional, Civil and 
Criminal Courts and Processes
Contents
I. Introduction
II.  Judiciary: it’s Constitution, Roles and Impartiality 
 a. Independence and Impartiality of the Supreme Court
 b. Structure and Hierarchy of the Courts in India
 c. The Civil Process and functioning of Civil Courts
III.  The Civil Court Structure
 a. Common Legal Terminologies
 b. Types of Jurisdiction
 c. Res subjudice and Res judicata in Code of Civil Procedure, 1908
IV .  Structure and Functioning of Criminal Courts in India
 a. Types of Offences
 b. Criminal Investigations and First Information Report (FIR)
 c. Criminal Process - Investigation and Prosecution
 d. Doctrine of autrefois acquit and auterfois convict (i.e. previously acquitted or previously  
 convicted)
 e. Function and Role of Police
V .  Other Courts In India
 a. Family Courts
 b. Administrative Tribunals
VI.  Exercises
Learning Outcomes
After the completion of this chapter, the students will be able to:
• State reasons for independence and impartiality of judiciary
• Draw a flow chart of hierarchy of courts in India
• Explain legislations governing courts in India
• Distinguish between Civil and Criminal Cases
CHAPTER
1
UNIT I UNIT II
UNIT IV
UNIT V UNIT III
• Explain the process of criminal investigation, inquiry and trial
• Distinguish between Cognizable and Non Cognizable offences, Bailable and Non Bailable 
offences 
• Describe the role of police
• Examine the importance of FIR in Criminal Investigation 
• Analyse the judicial structure envisaged  in the Constitution of India
I. Introduction
The aim of this chapter is, in the first place, to understand the salient features of Indian judiciary, its 
constitution, its roles and its independence. The introduction to this topic is meant to spur thoughts 
about court structure and their functions. The Indian legal system derives its authority from the 
Constitution of India and is deeply embedded in the Indian political system. The presence of judiciary 
substantiates the theory of separation of powers wherein the other two organs, viz., legislature and 
executive stand relatively apart from it.
Parliamentary democracy as envisaged in the Constitution of India works at Union and State level. 
Especially in making of law, there is direct participation of the legislature and the executive. It is the 
judiciary that safeguards the interest of citizens by not allowing the other organs to go beyond their 
role assigned in the Constitution. 
In brief, the Supreme Court of India is the logical and primary custodian of the Constitution of 
India, while also being its interpreter and guardian. Parliament enjoys the authority to amend the 
Constitution and the Supreme Court has the authority to examine the validity of constitutional 
amendments. The Supreme Court ensures that the other branches of government perform their 
responsibilities in accordance with the Constitution.
Judiciary is the final authority in interpreting legal issues and constitutional arrangements. The nature 
of democracy and development of the state depends upon how the legal system conducts itself to 
sustain the overall socio-economic and political environment.
Establishment of Supreme Court and High Courts
After India attained independence in 1947, the Constitution of India came into being on 26 January, 
1950. The transition from the Federal Court to the Supreme Court of India (SCI) was seamless. 
Justice Kania became the first Chief Justice of India. It is often said that the Supreme Court of India 
exercises jurisdiction far greater than that of any comparable court in the world.
The original Constitution of India envisaged a Supreme Court with a Chief Justice and seven puisne 
judges, while empowering the Parliament to increase the number of judges. Subsequently, the 
Parliament has the power to increase the number of judges of Supreme Court. Judges generally sit in 
smaller benches of twos or threes and form larger benches of five or more only when required to do 
so, or to settle a difference of opinion or controversy.
The Supreme Court has a threefold jurisdiction. As a federal court, it has exclusive original 
jurisdiction in any dispute arising between the Government of India and one or more states, between 
the Government of India and any state or states on one side and one or more states on the other or 
between two or more states. 
As an appellate court, the Supreme Court of India can hear appeals from the State High Courts on 
civil, criminal and constitutional matters.
The Supreme Court has also a very wide appellate jurisdiction in as much as it has the discretion 
UNIT I UNIT II
UNIT IV
UNIT V UNIT III
109
to grant special leave to appeal under Article 136 of the Constitution from any judgment, decree, 
determination, sentence or order in any cause or matter passed or made by any court or tribunal in 
the territory of India. In addition, the Supreme Court hears a number of statutory appeals provided 
under separate legislations. 
The Supreme Court has special advisory jurisdiction in matters, which may specifically be 
referred to it by the President of India under Article 143 of the Constitution. 
Furthermore, the Supreme Court has a concurrent original jurisdiction along with the High 
Courts, for the enforcement of fundamental rights under Article 32 of the Constitution of India. The 
jurisdiction of the Supreme Court of India can be enlarged by the Parliament. 
The Supreme Court may also pass any decree or order as may be necessary for doing complete 
justice. According to Article 141 of the Constitution of India, the law declared by the Supreme Court 
shall be binding on all courts within the territory of India. 
More importantly, the Supreme Court of India exercises judicial review - the power to strike down or 
declare unconstitutional, both legislative and executive actions, which are contrary to the provisions 
of the Constitution of India, or violative of the fundamental rights guaranteed by the Constitution, 
and also on the distribution of powers between the Union and the States.
The President appoints the Judges after consultation with the Judges of Supreme Court and High 
Courts of States. Article 124 (4) confers on the President power to remove the Judges if a motion 
is passed by a special majority of each House of Parliament, on the basis of proved misbehavior or 
incapacity to discharge one’s duties.
The Supreme Court of India has the special responsibility to render justice (social, economic and 
political) and to enforce equality, liberty, dignity and the ideals of democracy, socialism, secularism 
and such other values enshrined in the Constitution of India. Professor K.T.Shah, a member of the 
Constituent Assembly observed as follows: “the judiciary is the only authority that we are going to 
set up in the Constitution to give effect to whatever hopes and aspirations, ambitions and desires, 
we may have, in making these laws and in laying down this Constitution. Even constitutional and 
legislative amendments are not immune from judicial challenges”.
In the historic Fundamental Rights case (Kesavananda Bharti case, 1973), the Supreme Court of 
India held that the power to amend the Constitution was subject to the limitation that the ‘basic 
structure’ of the Constitution cannot be taken away. This decision means that the sovereign’s power 
to change or alter the Constitution of India is subject to limitations. 
After the President’s Rule case (1994), the ‘basic structure’ doctrine was not just limited to challenges 
to constitutional validity, but was also extended to interpret the validity of exercise of power by the 
legislature and the executive.
The High Courts in various states are the apex judicial bodies of the States. There are currently 25 
High Courts in India. The bulk of the work of the High Courts consists of appeals from lower courts 
and writ petitions under Article 226 and 227 of the Constitution of India. Apart from writ petitions, 
any civil or criminal case which does not fall within the purview or ambit of the subordinate courts 
of that State, due to lack of pecuniary or territorial jurisdiction, can be heard by the High Court of 
that State. Also certain other matters or issues may be heard by the High Court as part of its original 
jurisdiction, if the law laid down by the legislature provides to that effect.
II. Judiciary: It’s Constitution, Roles and Impartiality
The Judiciary, in India, today is an extension of the British Legal System. The Supreme Court is 
the apex body, followed by 25 High Courts, which in turn supervise and govern numerous District 
Courts. 
UNIT I UNIT II
UNIT IV
UNIT V UNIT III
110
Article 129 of the Constitution of India makes the Supreme Court a ‘court of record’ and confers all 
the powers of such a court including the power to punish for its contempt as well as of its subordinate 
courts. 
Article 141 of the Constitution of India provides that the law declared by Supreme Court is binding 
on all courts.
Judiciary in India plays an important role of interpreting and applying the law and adjudicating 
upon controversies between the citizens, the states and various other parties. It is the function of the 
courts to uphold the rule of law in the country and to safeguard civil and political rights. As India 
has a written constitution, courts have an additional function of safeguarding the supremacy of the 
Constitution by interpreting and applying its provisions and limiting the functioning of all authorities 
within the constitutional framework.
In a federation [i.e. union of states], the judiciary has another meaningful assignment (legally known 
as Original Jurisdiction of the Supreme Court of India envisaged in the Constitution of India), namely 
to decide controversies between the constituent states inter se as well as between the Union and the 
States. 
A federal government is a legislative government, a characteristic feature of which is the allocation of 
power between the Centre and the States. Disputes usually arise between the governments relating to 
distribution of power and function between them. An arbiter is therefore, required to examine laws to 
see whether they fall within the allotted legislative domain of the enacting legislature and this function 
is usually left to the judiciary. 
In this connection, the Supreme Court of India often invoked the following principles of interpretation 
of law viz., doctrine of pith and substance, doctrine of severability and doctrine of colourable legislation 
etc. 
Doctrine of pith and substance i.e., the true object of the legislation or a statute, relates to a 
matter with the competence of the legislature which enacted it. In order to ascertain the true character 
of the legislation one must have regard to the enactment as a whole, to its object and to the scope 
and effect of its provisions. 
Doctrine of severability separates repugnant provisions of a statute or law from others that are 
constitutional. The violating part of any provision of a statute is declared unconstitutional and void to 
the extent of such inconsistency, but the remainder remains enforceable and valid. 
Doctrine of colourable legislation prevents legislatures to make laws that they would otherwise 
not be able to create given the constitutional constraints. The whole doctrine of colourable legislation 
is based upon the maxim that you cannot do indirectly what you cannot do directly.
Case Laws
State of Maharashtra v. FN Balsara
Facts
State of Maharashtra passed a law putting a cap on the maximum amount of liquor (both domestic 
and imported) that could be held by any dealer/wholesaler.
The petitioner, FN Balsara was aggrieved by this law and challenged it in the SC as the law was putting 
a cap on quantity of imported liquor which was a topic in union list and hence state government was 
incompetent to make such a law.
State government took the stand that the purpose of law was to regulate consumption of liquor in the 
state and not regulation of import and export. Cap was on both domestic and foreign liquor.
Page 5


UNIT I UNIT II
UNIT IV
UNIT V UNIT III
Judiciary: Constitutional, Civil and 
Criminal Courts and Processes
Contents
I. Introduction
II.  Judiciary: it’s Constitution, Roles and Impartiality 
 a. Independence and Impartiality of the Supreme Court
 b. Structure and Hierarchy of the Courts in India
 c. The Civil Process and functioning of Civil Courts
III.  The Civil Court Structure
 a. Common Legal Terminologies
 b. Types of Jurisdiction
 c. Res subjudice and Res judicata in Code of Civil Procedure, 1908
IV .  Structure and Functioning of Criminal Courts in India
 a. Types of Offences
 b. Criminal Investigations and First Information Report (FIR)
 c. Criminal Process - Investigation and Prosecution
 d. Doctrine of autrefois acquit and auterfois convict (i.e. previously acquitted or previously  
 convicted)
 e. Function and Role of Police
V .  Other Courts In India
 a. Family Courts
 b. Administrative Tribunals
VI.  Exercises
Learning Outcomes
After the completion of this chapter, the students will be able to:
• State reasons for independence and impartiality of judiciary
• Draw a flow chart of hierarchy of courts in India
• Explain legislations governing courts in India
• Distinguish between Civil and Criminal Cases
CHAPTER
1
UNIT I UNIT II
UNIT IV
UNIT V UNIT III
• Explain the process of criminal investigation, inquiry and trial
• Distinguish between Cognizable and Non Cognizable offences, Bailable and Non Bailable 
offences 
• Describe the role of police
• Examine the importance of FIR in Criminal Investigation 
• Analyse the judicial structure envisaged  in the Constitution of India
I. Introduction
The aim of this chapter is, in the first place, to understand the salient features of Indian judiciary, its 
constitution, its roles and its independence. The introduction to this topic is meant to spur thoughts 
about court structure and their functions. The Indian legal system derives its authority from the 
Constitution of India and is deeply embedded in the Indian political system. The presence of judiciary 
substantiates the theory of separation of powers wherein the other two organs, viz., legislature and 
executive stand relatively apart from it.
Parliamentary democracy as envisaged in the Constitution of India works at Union and State level. 
Especially in making of law, there is direct participation of the legislature and the executive. It is the 
judiciary that safeguards the interest of citizens by not allowing the other organs to go beyond their 
role assigned in the Constitution. 
In brief, the Supreme Court of India is the logical and primary custodian of the Constitution of 
India, while also being its interpreter and guardian. Parliament enjoys the authority to amend the 
Constitution and the Supreme Court has the authority to examine the validity of constitutional 
amendments. The Supreme Court ensures that the other branches of government perform their 
responsibilities in accordance with the Constitution.
Judiciary is the final authority in interpreting legal issues and constitutional arrangements. The nature 
of democracy and development of the state depends upon how the legal system conducts itself to 
sustain the overall socio-economic and political environment.
Establishment of Supreme Court and High Courts
After India attained independence in 1947, the Constitution of India came into being on 26 January, 
1950. The transition from the Federal Court to the Supreme Court of India (SCI) was seamless. 
Justice Kania became the first Chief Justice of India. It is often said that the Supreme Court of India 
exercises jurisdiction far greater than that of any comparable court in the world.
The original Constitution of India envisaged a Supreme Court with a Chief Justice and seven puisne 
judges, while empowering the Parliament to increase the number of judges. Subsequently, the 
Parliament has the power to increase the number of judges of Supreme Court. Judges generally sit in 
smaller benches of twos or threes and form larger benches of five or more only when required to do 
so, or to settle a difference of opinion or controversy.
The Supreme Court has a threefold jurisdiction. As a federal court, it has exclusive original 
jurisdiction in any dispute arising between the Government of India and one or more states, between 
the Government of India and any state or states on one side and one or more states on the other or 
between two or more states. 
As an appellate court, the Supreme Court of India can hear appeals from the State High Courts on 
civil, criminal and constitutional matters.
The Supreme Court has also a very wide appellate jurisdiction in as much as it has the discretion 
UNIT I UNIT II
UNIT IV
UNIT V UNIT III
109
to grant special leave to appeal under Article 136 of the Constitution from any judgment, decree, 
determination, sentence or order in any cause or matter passed or made by any court or tribunal in 
the territory of India. In addition, the Supreme Court hears a number of statutory appeals provided 
under separate legislations. 
The Supreme Court has special advisory jurisdiction in matters, which may specifically be 
referred to it by the President of India under Article 143 of the Constitution. 
Furthermore, the Supreme Court has a concurrent original jurisdiction along with the High 
Courts, for the enforcement of fundamental rights under Article 32 of the Constitution of India. The 
jurisdiction of the Supreme Court of India can be enlarged by the Parliament. 
The Supreme Court may also pass any decree or order as may be necessary for doing complete 
justice. According to Article 141 of the Constitution of India, the law declared by the Supreme Court 
shall be binding on all courts within the territory of India. 
More importantly, the Supreme Court of India exercises judicial review - the power to strike down or 
declare unconstitutional, both legislative and executive actions, which are contrary to the provisions 
of the Constitution of India, or violative of the fundamental rights guaranteed by the Constitution, 
and also on the distribution of powers between the Union and the States.
The President appoints the Judges after consultation with the Judges of Supreme Court and High 
Courts of States. Article 124 (4) confers on the President power to remove the Judges if a motion 
is passed by a special majority of each House of Parliament, on the basis of proved misbehavior or 
incapacity to discharge one’s duties.
The Supreme Court of India has the special responsibility to render justice (social, economic and 
political) and to enforce equality, liberty, dignity and the ideals of democracy, socialism, secularism 
and such other values enshrined in the Constitution of India. Professor K.T.Shah, a member of the 
Constituent Assembly observed as follows: “the judiciary is the only authority that we are going to 
set up in the Constitution to give effect to whatever hopes and aspirations, ambitions and desires, 
we may have, in making these laws and in laying down this Constitution. Even constitutional and 
legislative amendments are not immune from judicial challenges”.
In the historic Fundamental Rights case (Kesavananda Bharti case, 1973), the Supreme Court of 
India held that the power to amend the Constitution was subject to the limitation that the ‘basic 
structure’ of the Constitution cannot be taken away. This decision means that the sovereign’s power 
to change or alter the Constitution of India is subject to limitations. 
After the President’s Rule case (1994), the ‘basic structure’ doctrine was not just limited to challenges 
to constitutional validity, but was also extended to interpret the validity of exercise of power by the 
legislature and the executive.
The High Courts in various states are the apex judicial bodies of the States. There are currently 25 
High Courts in India. The bulk of the work of the High Courts consists of appeals from lower courts 
and writ petitions under Article 226 and 227 of the Constitution of India. Apart from writ petitions, 
any civil or criminal case which does not fall within the purview or ambit of the subordinate courts 
of that State, due to lack of pecuniary or territorial jurisdiction, can be heard by the High Court of 
that State. Also certain other matters or issues may be heard by the High Court as part of its original 
jurisdiction, if the law laid down by the legislature provides to that effect.
II. Judiciary: It’s Constitution, Roles and Impartiality
The Judiciary, in India, today is an extension of the British Legal System. The Supreme Court is 
the apex body, followed by 25 High Courts, which in turn supervise and govern numerous District 
Courts. 
UNIT I UNIT II
UNIT IV
UNIT V UNIT III
110
Article 129 of the Constitution of India makes the Supreme Court a ‘court of record’ and confers all 
the powers of such a court including the power to punish for its contempt as well as of its subordinate 
courts. 
Article 141 of the Constitution of India provides that the law declared by Supreme Court is binding 
on all courts.
Judiciary in India plays an important role of interpreting and applying the law and adjudicating 
upon controversies between the citizens, the states and various other parties. It is the function of the 
courts to uphold the rule of law in the country and to safeguard civil and political rights. As India 
has a written constitution, courts have an additional function of safeguarding the supremacy of the 
Constitution by interpreting and applying its provisions and limiting the functioning of all authorities 
within the constitutional framework.
In a federation [i.e. union of states], the judiciary has another meaningful assignment (legally known 
as Original Jurisdiction of the Supreme Court of India envisaged in the Constitution of India), namely 
to decide controversies between the constituent states inter se as well as between the Union and the 
States. 
A federal government is a legislative government, a characteristic feature of which is the allocation of 
power between the Centre and the States. Disputes usually arise between the governments relating to 
distribution of power and function between them. An arbiter is therefore, required to examine laws to 
see whether they fall within the allotted legislative domain of the enacting legislature and this function 
is usually left to the judiciary. 
In this connection, the Supreme Court of India often invoked the following principles of interpretation 
of law viz., doctrine of pith and substance, doctrine of severability and doctrine of colourable legislation 
etc. 
Doctrine of pith and substance i.e., the true object of the legislation or a statute, relates to a 
matter with the competence of the legislature which enacted it. In order to ascertain the true character 
of the legislation one must have regard to the enactment as a whole, to its object and to the scope 
and effect of its provisions. 
Doctrine of severability separates repugnant provisions of a statute or law from others that are 
constitutional. The violating part of any provision of a statute is declared unconstitutional and void to 
the extent of such inconsistency, but the remainder remains enforceable and valid. 
Doctrine of colourable legislation prevents legislatures to make laws that they would otherwise 
not be able to create given the constitutional constraints. The whole doctrine of colourable legislation 
is based upon the maxim that you cannot do indirectly what you cannot do directly.
Case Laws
State of Maharashtra v. FN Balsara
Facts
State of Maharashtra passed a law putting a cap on the maximum amount of liquor (both domestic 
and imported) that could be held by any dealer/wholesaler.
The petitioner, FN Balsara was aggrieved by this law and challenged it in the SC as the law was putting 
a cap on quantity of imported liquor which was a topic in union list and hence state government was 
incompetent to make such a law.
State government took the stand that the purpose of law was to regulate consumption of liquor in the 
state and not regulation of import and export. Cap was on both domestic and foreign liquor.
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UNIT IV
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Issue
Was the law made by state government valid or violative of Art 246?
Decision
The supreme court held that when judging the validity of any law, the Act should be read as a whole to 
get its essence. The essence of the law in this case is not regulation of import and export but regulation 
of liquor consumption in the state, which is a topic in the state list and hence the law is valid.
Balaji v. State of Mysore
•	 Mysor e 	 government introduced reservations to the extent of 51% under article 16 of the 
constitution.
•	 This 	 was	 challenged	in 	 the	SC as being violative of Article 14.
•	 The 	 gover nment 	 took	 defense 	 that 	 it 	 did	 not 	 make 	 r eser vations 	 under	 Ar t 	 14 	 but 	 made 	 them 	 only 	
under Art 16.
Decision
•	 SC 	 held 	 that 	 a 	 law 	 made 	 should 	 be	 legal 	 under	 all 	 provisions. 	 By	 r esor ting	 to 	 one	 provision 	
only, the government cannot ignore another provision by applying the doctrine of colorable 
legislation.
•	 By 	 applying 	 doctrine 	 of	 severability , 	 the	 cour t 	 upheld	 49% 	 of	 r eser vations 	 but 	 struck 	 down	 as	
invalid 2% of the excess reservation.
While the power of the Parliament to legislate is supreme, at the same time the Judiciary has been 
made the watchdog of Indian democracy. The role of the judiciary has been ever changing and has 
evolved based on the constitution of India and the socio-economic needs of the country.
The phrase ‘basic structure’ was introduced for the first time in the Golaknath case (Golaknath v. 
State of Punjab, AIR 1967 SC 1643), but it was only in 1973 that this phrase was used by the Supreme 
Court and it means and includes those features of the Constitution which lay at its core requiring 
much more than the usual procedures to change them. It was held in the historic Kesvananda Bharati 
case that any amendment which aims at abrogating the basic structure of the Constitution would be 
unconstitutional. Hence, every proposed amendment is subject to judicial scrutiny if it is aimed at 
abrogating the basic structure of the Constitution.
Constituent elements of the basic structure include the supremacy of the Constitution, republican and 
democratic form of government, secular character of the Constitution, separation of powers between 
the legislature, executive and the judiciary and primarily the federal character of the Constitution. 
In addition, the Judiciary also has the power of judicial review. It implies that every piece of legislation 
passed by the Parliament is subject to judicial scrutiny by the Supreme Court of India. No specific 
provisions exist for this arrangement, however the power and extent of judicial review has been 
clarified through judicial pronouncements.
The Supreme Court of India, thus, has the power to strike down any piece of legislation aimed at 
amending the Constitution of India on two grounds. 
•	 Firstly, if the procedure prescribed under Article 368 is not followed; and 
•	 Secondly, if the amending Act seeks to violate one or more basic features of the Constitution.