High Courts, Subordinate Courts, Judicial Review, and the Basic Structure Doctrine
The High Courts of India are the pivot around which the Indian judicial system turns. They are the highest courts of appellate jurisdiction in states, the protectors of constitutional rights against state action, and the forums where most significant constitutional and civil litigation reaches its final determination before escalation to the Supreme Court. Established under Part VI of the Constitution (Articles 214 to 237), there are currently 25 High Courts in India, each serving one or more states and Union Territories. The Constitution of India (One Hundred and Twenty-First Amendment) Act, 2019 proposed the creation of a National Judicial Appointments Commission to replace the collegium system, but this was struck down in 2016, and the status quo of the High Court appointment process under the collegium system continues. For the RAS examination, understanding the composition, jurisdiction, and powers of High Courts, particularly their writ jurisdiction under Article 226, their relationship with the Supreme Court, and the basic structure doctrine that forms the bedrock of judicial review in India, is essential.
The High Courts serve three primary functions. As original courts for certain limited matters like disputes regarding election of members of Parliament and state legislatures. As appellate courts hearing appeals from subordinate courts and tribunals within their jurisdiction. As constitutional courts protecting fundamental rights and civil liberties through their writ jurisdiction under Article 226. The writ jurisdiction under Article 226 is broader than Article 32 of the Supreme Court because it allows any person to approach a High Court not only for enforcement of fundamental rights but for any legal right, making it a more versatile remedy for citizens. The High Courts also exercise supervisory jurisdiction over all subordinate courts and tribunals within their territory through the power of certiorari, prohibition, and mandamus. This supervisory power under Article 227 ensures the quality and consistency of justice delivery across the entire state. The basic structure doctrine, first articulated in Kesavananda Bharati vs. State of Kerala in 1973 and repeatedly affirmed since, is the constitutional principle that Parliament cannot amend the basic features of the Constitution. It is primarily a doctrine of judicial review that empowers courts to strike down constitutional amendments that destroy fundamental constitutional values. The doctrine has been used to protect federalism, secularism, separation of powers, judicial independence, and the dignity of the individual from parliamentary majorities that seek to concentrate power. For the RAS examination, the basic structure doctrine and its application to specific constitutional controversies is among the most frequently tested areas in Indian Polity.
🟢 Lite — Quick Review (1h–1d)
High Courts are the highest courts in states, protectors of constitutional rights through Article 226, and supervisory authorities over all subordinate courts. They are not single national courts but state-level constitutional institutions with national significance.
High Courts are established under Article 214. Every state has at least one High Court, though Parliament can establish a common High Court for two or more states. There are 25 High Courts in India. The Bombay High Court has benches in Mumbai, Nagpur, Aurangabad, and Panaji serving Maharashtra and Goa. The Punjab and Haryana High Court serves both Punjab and Haryana. The Hyderabad High Court was created in 2019 when Telangana was formed, replacing the undivided Andhra Pradesh High Court.
High Court judges are appointed by the President under Article 217. The qualifications are: at least 10 years as a judge in a High Court, or at least 10 years as an advocate of a High Court, or being a distinguished jurist in the President’s opinion. This is a higher threshold than the Supreme Court, where only 5 years as a High Court judge suffices. High Court judges hold office until 62 years of age (lower than the Supreme Court’s 65 years).
The most important jurisdiction for the RAS examination is the writ jurisdiction under Article 226. Article 226 empowers every High Court to issue directions, orders, or writs including habeas corpus, mandamus, prohibition, certiorari, and quo warranto to any person or authority, including the government, for the enforcement of fundamental rights or for any other purpose. The key feature of Article 226 is that it is wider than Article 32. Article 32 is specifically for fundamental rights in the Supreme Court. Article 226 covers any legal right. Any person can approach a High Court under Article 226.
Article 227 gives High Courts supervisory jurisdiction over all courts and tribunals (except those dealing with armed forces) within their jurisdiction. This is distinct from Article 226. Article 226 is for enforcing rights. Article 227 is for supervising subordinate courts to ensure they stay within their jurisdiction and follow proper procedures.
Subordinate courts are governed by Articles 233 to 237. District Judges are appointed by the Governor in consultation with the High Court. Judges below the district level (civil judges, magistrate courts) are recruited by the state government in consultation with the High Court. The High Court has full control over posting, promotion, and disciplinary action for all subordinate judicial officers. This is the most important provision for judicial independence at the lower level.
The basic structure doctrine from Kesavananda Bharati in 1973 means that Parliament can amend any provision of the Constitution but cannot destroy its basic structure. The basic structure has been held to include: supremacy of the Constitution, republican and democratic form of government, secular character, separation of powers, federalism, independence of the judiciary, dignity and freedom of the individual, and limited and reasonable restrictions on fundamental rights.
Exam tip: Students frequently confuse the supervisory jurisdiction (Article 227) with the writ jurisdiction (Article 226). Article 226 is for enforcing rights including fundamental rights. Article 227 is for supervising subordinate courts and tribunals to ensure they stay within their jurisdiction. Another common mistake is thinking that High Court writ jurisdiction is limited to fundamental rights. Article 226 covers any legal right, making it broader than Article 32.
🟡 Standard — Regular Study (2d–2mo)
Establishment and Composition of High Courts
Article 214 establishes a High Court for each state. Parliament may by law establish a common High Court for two or more states or for a state and a Union Territory. The Punjab and Haryana High Court serves both Punjab and Haryana. The Bombay High Court serves Maharashtra, Goa, Daman and Diu, and Dadra and Nagar Haveli. The Hyderabad High Court was established in 2019 for the newly-formed state of Telangana.
Article 216 provides that every High Court shall consist of a Chief Justice and such other judges as the President may appoint. The strength varies. The Bombay High Court has the largest sanctioned strength with benches in Mumbai, Nagpur, Aurangabad, and Panaji. Smaller High Courts like Sikkim High Court or Tripura High Court have fewer judges.
Qualifications for appointment under Article 217 are: at least 10 years as a judge in a High Court, or at least 10 years as an advocate of a High Court, or being a distinguished jurist. Unlike Supreme Court judges who need only 5 years as a High Court judge, High Court judges need 10 years of experience, ensuring only very senior and experienced lawyers become High Court judges.
Tenure and removal: High Court judges hold office until 62 years of age. They can be removed by the President on a resolution passed by both Houses of Parliament supported by a two-thirds majority of members present and voting. Only one High Court judge has ever been removed, Justice Visme Pakis in 1966. The removal process is effectively impossible due to its supermajority requirement.
Article 222 allows the President to transfer a judge from one High Court to another with the judge’s consent. The Second Judges Case in 1993 effectively transferred the appointment power to the collegium, reducing executive discretion in transfers.
Jurisdiction of High Courts
Original jurisdiction: High Courts have original jurisdiction in limited matters including disputes regarding election of members of Parliament and state legislatures under the Representation of the People Act 1951, matters relating to trusts and charities, and civil disputes above a certain valuation.
Appellate jurisdiction: High Courts hear appeals from District Courts and subordinate civil courts on civil matters, Sessions Courts and magistrate courts on criminal matters, and various tribunals including income tax and service tribunals.
Constitutional jurisdiction under Article 226 is the most important for the RAS examination. Article 226 empowers every High Court to issue directions, orders, or writs including habeas corpus, mandamus, prohibition, certiorari, and quo warranto to any person or authority for the enforcement of fundamental rights or for any other purpose. The key feature is that Article 226 is wider than Article 32 because it is not limited to fundamental rights; it can be used for any legal right.
Habeas corpus is the most powerful remedy against illegal detention. The court directs the detaining authority to produce the prisoner and explain the grounds of detention. If detention is found illegal, the court orders immediate release. In ADM Jabalpur vs. Shivanand in 1976 during the Emergency, the Supreme Court controversially held that even this power could be suspended during Emergency, but this was reversed by the 44th Amendment.
Article 227 supervisory jurisdiction: Every High Court has the power of supervision over all courts and tribunals (except those dealing with armed forces) within its jurisdiction. This means the High Court can transfer cases from one subordinate court to another, call for records to review proceedings, issue writs of certiorari to quash orders of lower courts acting without jurisdiction, issue prohibition to stop lower courts from acting beyond jurisdiction, and issue mandamus to subordinate courts to perform their statutory duties.
Subordinate Courts — Articles 233 to 237
Article 233 provides that District Judges are appointed by the Governor of the state in consultation with the High Court. The Second Judges Case in 1993 held that the Governor must act on the High Court’s recommendation for District Judge appointments, not override it, preventing political interference in judicial appointments at the district level.
Article 234 provides that recruitment of judges below the district level (civil judges, magistrate courts) is done by the state government in consultation with the High Court. The High Court’s supervisory power extends to framing service rules for subordinate judicial officers and conducting their examinations and promotions.
Article 235 vests control over district courts and subordinate courts in the High Court. This includes posting, promotion, and disciplinary control over all judicial officers in the state. This power ensures that judges of subordinate courts are insulated from executive interference. The Supreme Court in State of UP vs. Chandra Madhav in 1995 held that the state’s power to transfer a civil judge from one station to another cannot override the High Court’s supervisory control.
City Civil Courts are established in large cities to handle civil cases of lower valuation. They are subordinate to the High Court. Sessions Courts are the highest courts of original criminal jurisdiction at the district level. The Sessions Judge is appointed by the state government in consultation with the High Court and tries serious offences punishable with death, life imprisonment, or imprisonment for more than 7 years.
Judicial Review
Judicial review in India is not expressly mentioned in the Constitution. It is a doctrine derived from the basic structure. The Supreme Court in Vineet Narain vs. Union of India described judicial review as the basic feature without which the constitutional fabric would collapse. The doctrine empowers courts to strike down parliamentary legislation that violates fundamental rights, strike down constitutional amendments that violate the basic structure, issue directions to the executive to comply with constitutional obligations, and review administrative decisions for constitutional compliance.
The L. Chandra Kumar vs. Union of India case in 1997 further established that judicial review cannot be abolished or delegated away. It is a constitutional function that only courts can perform. The Constitution Bench held that the power of judicial review under Articles 32, 226, and 227 is a part of the basic structure and can be exercised only by the Supreme Court and the High Courts.
The Basic Structure Doctrine
Origin and development: The basic structure doctrine was first articulated in Kesavananda Bharati vs. State of Kerala in 1973. A 13-judge Constitution Bench by a 7 to 6 majority held that Parliament cannot amend the basic structure of the Constitution. The basic structure includes features essential to the constitutional scheme: federalism, parliamentary democracy, secularism, separation of powers, judicial review, and protection of fundamental rights.
Subsequent cases affirming the doctrine include Indira Gandhi vs. Raj Narain in 1975 where the Court upheld the basic structure even during the Emergency, rejecting the government’s argument that the 42nd Amendment was immune from judicial review. Minerva Mills vs. Union of India in 1980 struck down parts of the 42nd Amendment that sought to make all constitutional amendments unchallengeable. Waman Rao vs. Union of India in 1981 protected the basic structure against attempts to freeze judicial review. IR Coelho vs. Union of India in 2007 held that all laws in the 9th Schedule are now subject to basic structure review. The NJAC case in 2016 struck down the 99th Amendment as violating the basic structure of judicial independence.
What constitutes the basic structure? The Supreme Court has identified supremacy of the Constitution, republican and democratic form of government, secular character, separation of powers, federal character, dignity and freedom of the individual, independence of the judiciary, parliamentary system, unity and integrity of the nation, and limited and reasonable restrictions on fundamental rights as part of the basic structure.
🔴 Extended — Deep Study (3mo+)
Article 226 versus Article 32 — A Comparative Analysis
Article 226 covers any legal right and is available in High Courts. Any person can approach the High Court for writs for enforcement of fundamental rights or any other legal right. Locus standi is liberal and public interest litigation is allowed. During Emergency, Article 226 can be suspended under Article 359. The Supreme Court has held that Article 226 is wider in terms of rights covered but the remedies under Article 32 in the Supreme Court are considered broader because of Article 142 which allows the Supreme Court to issue any order for complete justice.
Article 32 covers only Fundamental Rights and is available in the Supreme Court directly. Any person can approach the Supreme Court for enforcement of fundamental rights. Locus standi is liberal and public interest litigation is allowed for the poor and disadvantaged. Critically, Article 32 cannot be suspended even during Emergency. This makes Article 32 the ultimate safeguard for fundamental rights.
The City Civil Courts and Sessions Courts
City Civil Courts are established in large cities like Mumbai, Chennai, Kolkata, Delhi, and Ahmedabad to handle civil cases of lower valuation. They are subordinate to the High Court. Their judges are appointed by the state government in consultation with the High Court under Article 234.
Sessions Courts are the highest courts of original criminal jurisdiction at the district level. The Sessions Judge is the principal judge of the district, appointed by the state government in consultation with the High Court under Article 233. Sessions Courts try serious offences. Below Sessions Courts are Magistrate Courts of First Class, Second Class, and Third Class that try less serious offences.
Under the Criminal Procedure Code 1973, the Sessions Court has power to try any offence except those exclusively triable by Magistrate Courts. The High Court’s supervisory jurisdiction over Sessions Courts is exercised through revision applications and appeals.
The Doctrine of State Action and the State Definition
Article 12 defines State to include the Union and state governments, Parliament and state legislatures, all local authorities including municipal corporations and panchayats, and other authorities created by or under the Constitution or by Parliament or state legislature. This broad definition means fundamental rights can be enforced against not just the government but also quasi-governmental bodies and public authorities.
The other authorities limb has been interpreted broadly. In Sukhdev Singh vs. Bhagat Ram in 1985, the Court held that corporations with government participation and performing essential public functions are State. This extends fundamental rights enforcement to nationalised banks, state electricity boards, universities, municipal corporations, and public sector insurance companies.
In P. Neeraj vs. Suo Motu in 2021, the Supreme Court held that even private entities providing essential public services like public transport could be subject to Article 226 in certain circumstances. The line between public and private is drawn by examining whether the entity is created by statute, receives government funding, and performs essential sovereign functions.
The Basic Structure Doctrine in Contemporary Cases
The NJAC case in 2016 struck down the 99th Amendment. The Constitution Bench held that including two eminent persons nominated by the executive and the Law Minister as a member would give the executive an effective voice in judicial appointments, violating the principle of judicial independence which is a basic structure feature. The collegium system was restored.
The Sabarimala Temple case in 2019 involved the Supreme Court’s majority opinion that women of menstruating age can enter the Sabarimala temple based on the basic structure of secularism and the right to equality under Articles 14 and 25. The minority dissented on whether the Court’s majority was giving too much weight to constitutional morality over religious freedom.
In the EWS Quota case in 2022, Janhit Abhiyan vs. Union of India, a Constitution Bench upheld the EWS quota (103rd Amendment) by 3 to 2. The majority held that economic criterion is a valid basis for reservation and the 50 percent ceiling is not a rigid basic structure rule. The dissenting judges argued that the ceiling was part of the basic structure.
The 2023 Telangana High Court case involved the creation of a separate Telangana High Court in 2019 and questions about whether the Union could unilaterally divide a High Court without the consent of the affected state. The Court upheld the Union’s power under Article 230.
What the Basic Structure Doctrine Means for Constitutional Amendment
The basic structure doctrine means that while Parliament has wide powers to amend the Constitution under Article 368, it cannot use that power to destroy the essential features that make India a democratic republic. This is significant for several reasons.
First, it means constitutional amendments can be challenged in court. If an amendment destroys federalism, secularism, separation of powers, or judicial independence, it can be struck down even if it was passed by the required majority in both Houses of Parliament.
Second, it means the Supreme Court has the power to review the substance of constitutional amendments, not just the procedure. A constitutionally passed amendment can still be struck down if it violates the basic structure.
Third, it means the Constitution is not an ordinary statute. It is a higher law that limits parliamentary power. Parliament cannot concentrate all power in itself because the basic structure doctrine prevents destruction of separation of powers.
The key test established by the Supreme Court is whether a feature is so essential to the Constitution that without it, the Constitution would be unrecognisable. If yes, it is part of the basic structure.
Landmark Cases Summary for the RAS Examination
Kesavananda Bharati vs. State of Kerala in 1973 established the basic structure doctrine by a 7 to 6 majority. The Court held that Parliament cannot amend the basic structure of the Constitution.
Minerva Mills vs. Union of India in 1980 struck down parts of the 42nd Amendment that attempted to make all constitutional amendments unchallengeable. The Court held that the limited amending power under Article 368 does not include the power to destroy the basic structure.
Indira Gandhi vs. Raj Narain in 1975 upheld the basic structure even during the Emergency when the government argued the 42nd Amendment was immune from judicial review.
IR Coelho vs. Union of India in 2007 held that all laws in the 9th Schedule are now subject to basic structure review. This was a significant expansion of the doctrine.
L. Chandra Kumar vs. Union of India in 1997 held that judicial review is a part of the basic structure and can be exercised only by the Supreme Court and High Courts.
Previous year questions from RAS have asked about the difference between Article 226 and Article 32, the composition and powers of High Courts, the appointment process for High Court judges under the collegium system, the basic structure doctrine and its significance, the supervisory jurisdiction of High Courts under Article 227, and the difference between original and appellate jurisdiction of High Courts.
⚠️ Exam Tips and Common Traps:
- Article 226 is wider than Article 32. Article 226 covers any legal right. Article 32 covers only Fundamental Rights. Both can be approached directly by any citizen.
- The basic structure doctrine originated in Kesavananda Bharati in 1973. The doctrine means Parliament can amend the Constitution but cannot destroy its basic structure.
- High Court writ jurisdiction during Emergency can be suspended under Article 359. Article 32 cannot be suspended. This is a critical distinction.
- Article 227 supervisory power is distinct from Article 226. Article 226 is for enforcing rights. Article 227 is for supervising subordinate courts to ensure they stay within jurisdiction and follow proper procedure.
- Transfer of High Court judges under Article 222 requires consent if the transfer is not at the judge’s own request. This is part of judicial independence protection.
- Second Judges Case in 1993 made the collegium system binding for judicial appointments. Consultation with the CJI must be real and effective.
- Subordinate courts control under Article 235 is vested in the High Court. High Court has full control over posting, promotion, leave, and discipline. State governments cannot interfere.
- Contempt of High Courts under Article 215 gives High Courts contempt jurisdiction, both civil and criminal, similar to the Supreme Court.