The Judiciary, Federalism, Emergency and Constitutional Machinery — Judicial Services
Weightage: The Constitution part of the Civil Law paper and the Prelims ask about the courts, Articles 233 to 237, the distribution of legislative powers, and Emergency. Candidates often skip the Articles on the subordinate judiciary, but they are the part of the Constitution that governs the job they are applying for.
1. The judiciary in the Constitution
Article 50 directs the State to separate the judiciary from the executive in public services. The structure is:
| Court | Key Articles |
|---|---|
| Supreme Court | 124 to 147 |
| High Courts | 214 to 231 |
| Subordinate courts | 233 to 237 |
| Tribunals | 323A and 323B |
2. The Supreme Court
- Article 124: constitution and appointment. A judge holds office until 65 years, and is removed only by an address of both Houses on proved misbehaviour or incapacity (Article 124(4)).
- Article 131: original jurisdiction in disputes between governments.
- Article 136: special leave to appeal.
- Article 141: the law declared by the Supreme Court is binding on all courts.
- Article 142: power to do complete justice.
- Article 143: advisory jurisdiction on a reference by the President.
- Article 129: a court of record with power to punish contempt.
3. The High Courts
A High Court is a court of record under Article 215, hears appeals, and issues writs under Article 226. Article 227 gives it superintendence over all courts and tribunals in its territory, and is a constant exam item. Article 235 places control over the subordinate courts, including posting, promotion and discipline, in the High Court.
4. Articles 233 to 237: the subordinate judiciary
These Articles decide how you become a judge.
- Article 233: District Judges are appointed by the Governor in consultation with the High Court. Judicial officers already in service are appointed by promotion in consultation with the High Court. A person not already in the service of the Union or the State must be an advocate or pleader of at least seven years' standing and be recommended by the High Court, and Dheeraj Mor v. High Court of Delhi (2020) held that serving judicial officers cannot take the bar quota.
- Article 234: other judicial posts, such as Civil Judge, are filled by the Governor in accordance with rules made after consulting the State Public Service Commission and the High Court.
- Article 235: control vests in the High Court.
- Article 236: defines "district judge" and "judicial service".
- Article 237: allows these provisions to apply to magistrates.
The All India Judges' Association cases led to a push for a central pattern, and the Supreme Court has also set minimum practice conditions for entry to the judicial service, so check your state's present rules.
5. How judges are appointed
The Judges Cases form a standard chain:
- S. P. Gupta (1981): the executive had primacy.
- Second Judges Case (1993): the collegium of senior judges has primacy.
- Third Judges Case (1998, Presidential reference): the collegium has five judges for the Supreme Court.
- Fourth Judges Case (2015): the 99th Amendment and the NJAC Act were struck down as violating the independence of the judiciary, part of the basic structure.
6. Distribution of legislative powers
Articles 245 and 246 distribute power, and the Seventh Schedule lists the Union, State and Concurrent subjects. The Union has residuary power (Article 248). Know these doctrines, which are asked as definitions and as problems:
- Pith and substance: look at the true nature of the law, not its incidental effect on another list.
- Colourable legislation: doing indirectly what cannot be done directly.
- Harmonious construction and repugnancy (Article 254): where a Union and a State law on a Concurrent subject conflict, the Union law prevails, unless the State law received Presidential assent.
- Doctrine of eclipse (Bhikaji Narain Dhakras, 1955): a pre-constitutional law inconsistent with a fundamental right is not dead but eclipsed, and revives if the bar is removed.
- Severability: only the invalid part falls if the rest can stand.
7. Executive and legislature in brief
- President: Articles 52 to 62, ordinance power under Article 123.
- Governor: Articles 153 to 162, ordinance power under Article 213. Governors act on the advice of the council of ministers except where the Constitution gives discretion.
- Money Bill: Article 110; the Speaker's certificate is final.
- Privileges: Articles 105 and 194.
- Anti-defection law: the Tenth Schedule; Kihoto Hollohan (1992) upheld it and held the Speaker's decision subject to limited judicial review.
8. Emergency and Article 356
- Article 352: National Emergency on war, external aggression or armed rebellion (the 44th Amendment replaced "internal disturbance"). The President must act on written advice of the Cabinet.
- Article 356: failure of constitutional machinery in a State. In S. R. Bommai v. Union of India (1994), the Court held that the proclamation is subject to judicial review, that a floor test, not the Governor's opinion, decides majority, and that secularism is basic.
- Article 360: Financial Emergency, never used.
- Article 359: during Emergency, enforcement of fundamental rights may be suspended, but Articles 20 and 21 cannot be suspended after the 44th Amendment.
9. Tribunals and the civil services
Article 323A and 323B allow tribunals. In L. Chandra Kumar (1997) the Court held that tribunal decisions are subject to High Court review under Articles 226 and 227. Article 311 protects civil servants from dismissal without an inquiry.
10. How judges read a statute
Questions on interpretation use these rules:
- Literal rule: ordinary meaning.
- Golden rule: avoid absurdity.
- Mischief rule (Heydon's case): suppress the mischief the law meant to end.
- Harmonious construction and ejusdem generis.
- Beneficial interpretation for social welfare laws.
Common traps judicial exams set here
- Giving Article 233 as the entry rule for Civil Judges. It governs District Judges; Civil Judges come under Article 234.
- Placing control of subordinate courts in the Governor. It is in the High Court (Article 235).
- Calling the NJAC upheld. It was struck down in 2015.
- Saying Article 356 is not reviewable. Bommai made it reviewable.
- Mixing Articles 226 and 227. 226 is writs; 227 is superintendence.
Memory aids
- "233 District Judge, 234 Civil Judge, 235 control, 236 define, 237 magistrates": the five Articles.
- "1981, 1993, 1998, 2015": the Judges Cases.
- "Pith, colour, eclipse, sever": the four doctrines.
Summary
The Constitution places the judiciary in Articles 124 to 147, 214 to 231 and 233 to 237. District Judges are appointed under Article 233 and Civil Judges under Article 234, with the High Court controlling subordinate courts under Article 235.
The Judges Cases moved from executive primacy to the collegium, and the NJAC was struck down in 2015. Federalism, Emergency and interpretation rules are the other regular questions.
Exam protocol
- Learn Articles 233 to 237 by number.
- Cite the case for every doctrine.
- Say whether an issue is for Article 226 or 227.
