In the year 1946, the Constituent Assembly met for the first time at the Constitution Hall (later known as Central Hall), at New Delhi on 9th December 1946 to create a constitution for all. Legal historians referred to them as founders or architects. But they appeared to be more like artists. While the Constitution didn't start on a tabula rasa, each of the Assembly members brought to the canvass, their own unique perspective on how the Constitution should appear. This is evident from the record of the Constituent Assembly debates held between 9th December 1946 and 24th January 1950 covering 12 volumes and approximately 6000 pages.
The artists of the Constitution created two Superior Courts: one known as the Supreme Court and the other, the High Court in the States. The Supreme Court found its place in Part V, Chapter IV of the Draft Constitution (Draft Articles 103 to 123) under the heading “The Federal Judicature” while the High Courts found their place in Part VI, Chapter VII of the Draft (Draft Articles 191 to 209). The heading “Federal Judicature” in Chapter IV of Part V was eventually substituted with the words “Union Judiciary” on 23rd May 1949. Several debates and amendments of great significance took place while formulating the Chapters concerning the Supreme Court and the High Courts. But that's a different story for a different day.
Both the Supreme Court under Draft Article 108 and the High Courts under Draft Article 192 were christened as Courts of Record.
In the final portrait of the Constitution, the Supreme Court was placed in Part V (The Union) Chapter IV under the heading, “The Union Judiciary” i.e. Articles 124 to 147 and the High Courts in Part VI (The States) Chapter V under the heading, “The High Courts in the States” from Articles 214 to 231.
For a layman, who isn't trained in the arts, the Supreme Court clearly appears to be the major-domo. The law it declares binds all Courts (Article 141), it has powers to pass orders necessary to do complete justice which are enforceable throughout India (Article 142), it has the power to decide disputes between the Union and the States or inter se between the States, (Article 131). It is also an Appellate Court having the power and discretion to decide Appeals arising out judgments and orders of the High Courts (Articles 132 to 136); but most importantly, it is incumbent upon all authorities, civil and judicial in India to act in aid of the Supreme Court (Article 144). In addition, Parliament also has the power to enlarge the jurisdiction of the Supreme Court and give it ancillary powers (Articles 138 to 140), and the President of India can also consult the Supreme Court on any question of law or fact (Article 143). The High Courts, however, are not bestowed on such powers. While they are Courts of Record having wide powers to issue writs (Article 226) and having powers of superintendence (Article 227), they operate in their own spheres of influence within their territorial limits and cannot exercise their powers in derogation to that of the Supreme Court.
But for a student of the arts, who spends his time scoffing at these laymen, such observations are far too simplistic for his liking. According to him, the layman doesn't take a nuanced approach. He debates with the layman using authority laid down by the Supreme Court.
First there was Mirajkar….
He first turns to Naresh Shridhar Mirajkar v. State of Maharashtra. Gajendragadkar C.J., while speaking for five out of the nine Justices emphatically held that a writ of certiorari could not be issued against judicial orders of the High Courts, as the High Courts were superior Courts. The student of the arts then refers to opinions of Sarkar J. and Shah J who had in no uncertain terms held that the High Courts were not “inferior courts”.
“But what about the opinion of Hidayatullah J.?”, asks the layman. “Didn't the Justice opine that if a High Court order violated the fundamental right of a citizen, the Supreme Court could step in and protect the citizen under Article 32?”. “That would be of no consequence!” says the student of the arts. “It's the majority that rules!”.
“But didn't one of our own rely on Chief Justice Charles Even Huges to hold that a dissent in a court of last resort is an appeal to the brooding spirit of the law?”, asks the layman. “Not in every case”, says the student of the arts, who hadn't expected the laymen to counter his thoughts with such depth.
Then there was Antulay
Steering clear of Mirajkar, the student of the arts then turns to A.R. Antulay v. R.S. Nayak. Mukharji J. speaking for himself, Oza and Natarajan JJ. had held that a bench of five Justices could not have directed the transfer of a case from a Special Judge in a state to the High Court of the state. This, according to the student of the arts shows that the Supreme Court recognized the “superior status” of the High Court. The layman however turned to Assistant Collector of Central Excise v. Dunlop India Ltd. in which Chinnappa Reddy J. on behalf of the bench of three Justices had held that “in the hierarchical system of courts…. it is necessary for each lower tier, including the High Court, to accept loyally the decisions of the higher tier.”
“You read these observations out of context!”, scoffs the student of the arts. “That apart, Antulay was seven Justices, and this was three.”, he says. “So, is it merely a numbers game?”, questions the layman. “Yes, of course it is! Both Mukharji J and Misra J. in Antulay say so.”
The Second and Third Judges cases
“And what about the Second and Third Judges cases?”, questions the layman. “Didn't both these decisions make the Supreme Court “super-supreme” despite the argument made in the Second Judges case that the Chief Justice of India has no administrative control over the High Courts? Moreover, isn't a High Court judge's transfer beyond challenge or question except on extremely limited grounds?” “If that be the case, then isn't the High Court in effect subordinate to the Supreme Court!”, presses the layman. “No, it is NOT!”, howls the student of the arts.
And he then exclaims, “Hurra!”, not once, but twice.
“Look at what five Justices of the Supreme Court said in Rupa Ashok Hurra v. Ashok Hurra!”, says the student of the arts. “They reiterated what was held in Mirajkar and once again observed that the High Courts are not inferior courts in our constitutional scheme.”
The elder brother with an edge
“That may be so, says that laymen, “But in Tirupati Balaji Developers (P) Ltd. v. State of Bihar, the Supreme Court has on one had held that the High Court is not subordinate to the Supreme Court, but on the other hand held that it is an elder brother with an edge! And further, didn't Tirupati Balaji Developers go on to state that while exercising appellate jurisdiction the Supreme Court is superior to the High Court?”, presses the laymen. “While Tirupati Balaji Developers observed that the Supreme Court cautiously abstains from issuing 'directions' to the High Court and makes 'requests' to the High Court, didn't the very same Supreme Court in Spencer & Company Ltd. v. Vishwadarshan Distributors Pvt. Ltd. observe that the language of request used by the Supreme Court is to be read by the High Court as an obligation to carry out the constitutional mandate?”, asks the laymen. “Therefore, isn't the High Court inferior to the Supreme Court?”, he asks again.
When the Supreme Court Resurfaced
The student of the arts wasn't going to be beaten by the layman at his own game. “Look at what happened in Asian Resurfacing of Roads Agency v. CBI. Three Justices of the Supreme Court had directed that in pending civil or criminal trials, where a stay is operating, it would automatically end six months from its judgment unless it is extended in an exceptional case”, he says. “This direction was overruled by five Judges in High Court Bar Association, Allahabad v. State of Uttar Pradesh in which the Court in specifically held that the High Court is not 'judicially subordinate' to the Supreme Court”
“But what about administrative autonomy?” questions the layman. “While the High Court Bar Association, Allahabad may have stated that High Courts are not 'judicially subordinate' to the High Court, would this include within itself administrative autonomy?”, he counters. “Isn't it obvious?”, retorts the student of the arts. “You are the student of the arts; I am a mere layman. How can anything be presumed to be obvious particularly when in the recent past, a Division Bench of the Supreme Court has issued directions to the Chief Justice of a High Court to withdraw certain types of matters from a particular High Court Judge and assign them to another.”, says the layman. “And even though this incident may have been laid to rest, didn't another Division Bench of the Supreme Court shortly thereafter basically direct all High Courts to deliver their judgments within three months?”, presses the layman. “Won't these directions be inconsistent with the law laid down in High Court Bar Association, Allahabad? Why can't you just admit that the Supreme Court is superior to the High Court?”, asks the layman.
“The law isn't black and white!”, wails the student of the arts, who had by now considerably been ruffled by the layman. “It's called 'Supreme' for a reason you fool!”, the layman shouts back. “What's in a name?”, says the student. “The obvious!”, retorts the laymen.
The student of the arts had had enough by now. The layman had gotten the better of him, but he would never admit it. It was time to part ways. “I shall take your leave, layman. I've had quite enough of you and your logic. But you need to appreciate the finer aspects of this organic document called the Constitution.”, he advises.
“I shall call a spade a spade. I may be a layman, but I see this document for what it is and for who it is intended for. If destiny demands, I shall see you in the afterlife.”, he says, while parting.
The Postscript from the fly on the wall
Both sides made compelling arguments. The layman used logic, and the student of the arts used law. But like oil and water, logic and law seldom mix.
Would it not be obvious to conclude that the Supreme Court is superior to the High Courts? Apart from being obvious, isn't it logical? But the answer to this question lies not in logic but in law and from a reading of the law what one can conclude is this: both the Supreme Court and the High Courts are “Constitutional Courts”. There can be no dispute on this. But the Supreme Court is and always will be “a Superior Constitutional Court” while the High Courts will remain “a Constitutional Court.” This is what was intended. Any other interpretation would be running away from the obvious and above all, reality.
The author is a practicing Advocate at the Bombay High Court. Views are personal.