State Legislature and the High Courts

The Constitution built the states as miniature Unions — an executive answerable to a directly elected house, a legislature with plenary power over the subjects that touch daily life most closely, and a High Court armed with a writ jurisdiction wider than the Supreme Court’s own. Two of those three organs have travelled in opposite directions: the legislature has contracted to around three weeks a year and scrutinises almost nothing, while the High Court has become the principal site of constitutional litigation in India while carrying a crippling backlog.

The constitutional architecture of the state legislature

• Articles 168 to 212 of Part VI constitute and regulate the legislature of every state, and they are drafted as a near-copy of the Union chapter with a small number of deliberate divergences.
  • Article 168 provides that for every state there shall be a legislature consisting of the Governor and one or two Houses — the Governor is a constituent part of the legislature, exactly as the President is at the Union.
  • Where there are two Houses, the lower is the Legislative Assembly (Vidhan Sabha) and the upper the Legislative Council (Vidhan Parishad).
• Unicameralism is the default, bicameralism the option. This is the first structural difference from the Union, where the Rajya Sabha is permanent and unremovable.
  • The Constituent Assembly took the view that a second chamber at state level had no federal function to perform — there are no units below the state to be represented — and so left the question to each state.
  • Article 169 therefore makes the Council an optional and reversible institution, created or abolished by ordinary parliamentary law and expressly declared not to be a constitutional amendment under Article 368.
  • The consequence is that India’s only chamber that can be legislated out of existence is a legislative chamber.

A second chamber that Parliament can abolish by ordinary law is not entrenched, and an institution that is not entrenched survives only as long as the argument for it does.

Why the state legislature carries a distinct constitutional weight

• The State List and the Concurrent List put the subjects of everyday governance in the hands of these houses — land, agriculture, public order and police, public health, local government, and (since 1976) education and criminal law concurrently.
  • A citizen encounters the Union legislature through taxation and national policy; she encounters the state legislature through the police station, the land record, the primary health centre and the school.
• The state legislature is the sole source of the state government’s legitimacy — the Chief Minister and council of ministers are collectively responsible to the assembly under Article 164(2), and to no one else.
• Article 356 makes the state legislature uniquely vulnerable: it is the only legislature in India that can be dissolved or suspended by a proclamation of the Union executive.

The Legislative Assembly

Composition and term

• Article 170 fixes the assembly at not more than 500 and not fewer than 60 members, chosen by direct election from territorial constituencies on universal adult franchise.
  • The Constitution requires that the ratio between the population of each constituency and the seats allotted to it be, as far as practicable, the same throughout the state.
  • Seat totals are frozen at the 1971 census figures until the first census after 2026 — the same freeze that governs the Lok Sabha, and the same delimitation controversy.
• Special minimums override the floor of 60 for the smaller states, because a rigid 60 would have produced absurdly small constituencies.
  • Arunachal Pradesh, Sikkim and Goa are fixed at a minimum of 30 members.
  • Mizoram is fixed at 40 and Nagaland at 46.
  • The Union Territories with legislatures — Delhi, Puducherry and Jammu and Kashmir — are governed by their own statutes rather than by Article 170.
• The nominated Anglo-Indian seat under Article 333 lapsed with the 104th Amendment (2019), which extended reservation for Scheduled Castes and Scheduled Tribes but allowed Anglo-Indian nomination to expire in January 2020.
• Article 172 gives the assembly a term of five years from its first meeting, extendable by one year at a time during a national emergency and ending six months after the emergency ceases.
  • Dissolution before term is by the Governor on ministerial advice, or automatically on a proclamation under Article 356 that dissolves the house.

Qualifications, disqualifications and vacancies

• Article 173 requires a member to be a citizen of India, to take the prescribed oath, and to be not less than 25 years of age for the assembly and 30 for the Council.
• Article 191 lists disqualifications — office of profit under the Union or a state, unsound mind, insolvency, non-citizenship — and the Tenth Schedule adds disqualification on the ground of defection.
  • The question of disqualification under Article 191(1) is decided by the Governor on the opinion of the Election Commission, which is binding; disqualification under the Tenth Schedule is decided by the presiding officer, which is where the trouble begins.
• Article 190(4) provides that a member absent from all meetings for sixty days without permission may have his seat declared vacant — a provision that would later become decisive in the law on suspension.

The Speaker and Deputy Speaker

• Article 178 provides for a Speaker and Deputy Speaker elected by the assembly from among its own members, and the office is a functional copy of the Lok Sabha Speaker’s with three notable differences.
  • Article 179 allows removal by a resolution passed by a majority of all the then members, after fourteen days’ notice — the same threshold as at the Union.
  • Article 181 bars the Speaker from presiding while a resolution for his own removal is under consideration, though he may speak and vote in the first instance.
  • Article 180 vests the Deputy Speaker, and in his absence a person determined by the house, with the Speaker’s functions during a vacancy.
• The differences from the Lok Sabha Speaker are matters of practice and constitutional environment rather than text.

Dimension	Lok Sabha Speaker	Speaker of a Legislative Assembly
Continuity after dissolution	Continues until immediately before the first meeting of the new house (Article 94)	Same rule under Article 179, but the assembly is far likelier to be dissolved prematurely
Money bill certificate	Certificate under Article 110(4) is final and shielded by Article 122	Identical power under Article 199(4), with far less scrutiny of its use
Anti-defection adjudication	Decides Tenth Schedule cases in a house where governments rarely turn on defections	Decides them in houses where a handful of defections decides who governs
Institutional support	A large secretariat, research service and a developed committee structure	A small secretariat and, in most states, no functioning committee system
Convention of neutrality	The Shivraj Patil–Somnath Chatterjee tradition of party resignation was never Indian practice either, but the office carries greater visibility	The Speaker is often a serving party politician awaiting a ministerial berth

• The Chairman and Deputy Chairman of the Council are provided for by Articles 182 to 185, elected by the Council from among its own members — unlike the Rajya Sabha, whose Chairman is the Vice-President and therefore an outsider to the house.
  • This makes the Council’s presiding officer structurally closer to the Speaker than to the Rajya Sabha Chairman.

Sessions, quorum and the conduct of business

• Article 174 requires the Governor to summon the house so that not more than six months intervene between the last sitting of one session and the first sitting of the next.
  • This is a ceiling on the gap, not a floor on the number of sitting days — the single most consequential drafting silence in the whole chapter.
  • The Governor may prorogue the house and dissolve the assembly.
• Article 175 gives the Governor the right to address either house and to send messages; Article 176 requires a special address at the commencement of the first session after each general election and the first session of each year.
• Article 177 allows ministers and the Advocate-General to speak in and take part in the proceedings of either house, though the Advocate-General has no vote.
• Article 189 fixes the quorum at ten members or one-tenth of the total membership, whichever is greater — a threshold so low that a house of 400 can transact business with forty members present.
• Article 208 empowers each house to make its own rules of procedure; Article 212 bars courts from inquiring into the validity of proceedings on the ground of alleged irregularity of procedure.
• Article 211 prohibits any discussion in the state legislature of the conduct of a judge of the Supreme Court or a High Court in the discharge of his duties.

The two things only the assembly can do

• Money bills originate and effectively conclude in the assembly. Under Article 198, a money bill goes to the Council, which has fourteen days to return it with recommendations the assembly may accept or reject; if it is not returned, it is deemed passed.
  • Article 199 defines a money bill and makes the Speaker’s certificate final; Article 207 requires the Governor’s recommendation for financial bills and bars their introduction in the Council.
• The government’s survival rests on the assembly alone. A no-confidence motion lies only in the assembly, and a defeat in the Council has no constitutional consequence for the ministry.
  • This is the single fact that reduces the Council from a chamber of government to a chamber of opinion.

The Legislative Council: creation, composition and contingency

Article 169 — the abolition clause

• Parliament may create or abolish a Legislative Council by law, but only if the assembly of the state concerned first passes a resolution to that effect.
  • The resolution requires a special majority — a majority of the total membership of the assembly and a majority of not less than two-thirds of the members present and voting.
  • Parliament is not obliged to act on the resolution, and has repeatedly declined to; resolutions from Rajasthan (2012) and Assam (2010) have sat unacted on for well over a decade.
  • Such a law may contain incidental and consequential provisions and is expressly not an amendment of the Constitution for the purposes of Article 368.
• The design creates a double veto: the state must want a Council and the Union Parliament must agree, which means the fate of a state’s second chamber is settled partly in Delhi.

Article 171 — composition

• The ceiling and the floor: total strength must not exceed one-third of the assembly’s strength and must not be fewer than forty members.
  • The ceiling guarantees that the Council can never outvote the assembly in any joint proceeding — which is one reason the Constitution provides none.
• Five electoral streams, of which four are indirect and one is nomination:
  • One-third elected by local bodies — municipalities, district boards and other local authorities specified by Parliament. This is the Council’s most distinctive claim, since no other Indian legislative chamber represents local government as such.
  • One-twelfth elected by graduates of three years’ standing residing in the state.
  • One-twelfth elected by teachers of three years’ standing in institutions not lower than secondary schools.
  • One-third elected by members of the assembly, from persons who are not members of the assembly — a stream that necessarily draws in outsiders.
  • The remainder — one-sixth — nominated by the Governor from persons with special knowledge or practical experience in literature, science, art, the cooperative movement and social service.
• Article 171(2) allows Parliament to alter this composition by law, a power never exercised.
• Article 172(2) makes the Council a continuing chamber that is never dissolved: members serve six-year terms with one-third retiring every two years.
  • The Council therefore survives the dissolution of the assembly, giving the state a legislative body in continuous existence — the strongest structural argument in its favour.

Which states have one, and the record of creation and abolition

• Six states currently have a Legislative Council: Andhra Pradesh, Telangana, Karnataka, Maharashtra, Bihar and Uttar Pradesh.
• The history is a record of political convenience, not institutional reasoning, and each episode is worth naming because the pattern is the argument.
  • Andhra Pradesh created its Council in 1958, abolished it in 1985 under a Telugu Desam government that found it obstructive, and revived it in 2007 under a Congress government. In 2020 a Yuvajana Sramika Rythu Congress government passed a fresh abolition resolution after the Council blocked its legislation; the Union Parliament never enacted the bill and the state later withdrew the proposal, so the Council survives.
  • Tamil Nadu abolished its Council in 1986. The state passed a revival resolution and a bill was introduced in 2010, but it lapsed and has never been implemented, though the ruling party has periodically restated its commitment.
  • West Bengal, which had a Council from 1937, abolished it in 1969; the assembly passed a revival resolution in 2021 and the necessary parliamentary legislation has not followed.
  • Punjab abolished its Council in 1969, in the same wave.
  • Rajasthan (2012) and Assam (2010) passed creation resolutions that remain pending in Parliament to this day.
  • Jammu and Kashmir’s Council was abolished in 2019, not under Article 169 at all, but by the Jammu and Kashmir Reorganisation Act which converted the state into Union Territories.
• Telangana inherited a Council on its creation in 2014 under the Andhra Pradesh Reorganisation Act, which is the only recent instance of a Council coming into existence without a fresh Article 169 exercise.

The case for and against the Legislative Council

Ground	The case for	The case against
Revision	A second look at legislation drafted by an overworked executive and passed in a house that meets for weeks	Its delaying power is three months on first passage, one on second — enough to annoy, never enough to stop
Hasty legislation	Checks bills rushed through in a single sitting, which is how roughly a third of state bills pass	It cannot reject a bill; the assembly’s second passage is conclusive
Representation	The only chamber in India representing local bodies, graduates and teachers as distinct electorates	Graduate and teacher constituencies have shrunk into small, manipulable electorates far from their original rationale
Expertise	Brings in eminent persons who cannot or will not fight elections — writers, scientists, cooperators, social workers	The nominated quota is used for party functionaries, not for the categories Article 171(5) lists
Continuity	Never dissolved; the state retains a legislative body when the assembly is dissolved or suspended	Continuity without power is continuity of a debating society
Money bills	Can propose amendments the assembly may adopt	Fourteen days and no more; recommendations may be rejected outright
Confidence	Insulated from the confidence question, so it can speak more freely	It cannot unseat a government, which is why governments ignore it
Deadlock	—	No joint sitting provision exists, unlike Article 108 at the Union — because none is needed when the lower house always wins
Cost	A modest price for a deliberative check	Salaries, secretariat and establishment for a chamber that cannot decide anything
Political use	—	A rehabilitation route for defeated politicians and a back door to ministerial office for those who lost the popular vote

• The back-door point is constitutionally significant, not merely a political complaint. A person may be appointed a minister under Article 164(4) and must become a member of either house within six months.
  • A Council seat — indirectly elected or nominated — is the easiest such membership to arrange, so a leader defeated at the polls can be made Chief Minister and then routed into the Council.
  • The practice inverts the chamber’s justification: it was defended as a route for those who should not have to fight elections, and is used for those who did and lost.

The Council against the Rajya Sabha

Power	Rajya Sabha	Legislative Council
Existence	Permanent; can be abolished only by constitutional amendment	Created or abolished by ordinary law under Article 169
Ordinary bills	Co-equal; deadlock resolved by joint sitting under Article 108	Can delay three months, then one month; assembly’s repassage prevails; no joint sitting
Money bills	Fourteen days, recommendations advisory	Fourteen days, recommendations advisory — identical
Constitutional amendments	Equal and indispensable — an amendment cannot pass without it	No role whatsoever
Federal powers	Article 249 — can authorise Parliament to legislate on a State List entry; Article 312 — can authorise a new All India Service	None
Executive removal	Cannot pass a no-confidence motion, but ministers are answerable to it	Cannot pass a no-confidence motion; ministers answer to the assembly
Presiding officer	Vice-President of India, not a member	Chairman elected from among its own members
Impeachment and elections	Participates in electing the President and Vice-President, and in removal of judges	No role in any of these

• Why Articles 249 and 312 have no state analogue is the conceptual heart of the comparison, and it is not an oversight.
  • The Rajya Sabha represents the states in the Union legislature; those two powers are the states collectively consenting to a temporary or permanent transfer of their own competence.
  • A Legislative Council represents no federating unit at all. There is nothing below the state that possesses legislative competence which a Council could be said to speak for, so there is no competence for it to surrender.
  • The Rajya Sabha’s exceptional powers flow from its federal character; the Council has no federal character, and therefore no exceptional powers.

The Legislative Council was given the form of a second chamber without the function that makes second chambers matter — federal representation — and then denied the powers that might have substituted for it.

Legislative procedure, ordinances and finance in the states

Ordinary and money bills

• An ordinary bill may originate in either house where the legislature is bicameral, and must be passed by both.
  • Article 197 governs deadlock: if the Council rejects a bill, or passes it with amendments the assembly will not accept, or does not pass it within three months, the assembly may pass it again; the Council then has one month, after which the bill is deemed passed by both houses in the form the assembly last approved.
  • The maximum obstruction available to a Council is therefore four months, and the assembly never has to compromise.
• Money bills originate only in the assembly and only on the Governor’s recommendation, and the fourteen-day rule of Article 198 applies.
• Financial procedure is set out in Articles 202 to 207 and mirrors the Union.
  • Article 202 — the annual financial statement, distinguishing expenditure charged on the Consolidated Fund of the State (Governor’s emoluments, Speaker’s and Chairman’s salaries, High Court judges’ salaries, debt charges, court decrees) from expenditure submitted to the vote of the assembly.
  • Article 203 — charged expenditure is discussed but not voted; the rest requires demands for grants, which only the assembly may vote and which cannot be moved except on the Governor’s recommendation.
  • Article 204 — the Appropriation Bill, without which no money leaves the Consolidated Fund of the State.
  • Articles 205 and 206 — supplementary, additional and excess grants, votes on account, votes of credit and exceptional grants.

The ordinance power under Article 213

• Article 213 gives the Governor power to promulgate ordinances when the legislature (or, where bicameral, both houses) is not in session and he is satisfied that circumstances require immediate action.
  • An ordinance has the same force and effect as an Act, must be laid before the legislature when it reassembles, and ceases to operate six weeks from reassembly unless approved earlier.
  • It is co-extensive with the legislative power of the state legislature and cannot do what an Act could not do.
• Article 213 carries a restriction Article 123 does not: the Governor cannot promulgate without instructions from the President in three situations —
  • where a bill containing the same provisions would have required the President’s previous sanction for introduction;
  • where he would have deemed it necessary to reserve such a bill for the President’s consideration;
  • where an Act of the legislature containing the same provisions would have been invalid without the President’s assent.
  • This is a federal control device: the Union’s grip on state legislation extends to the state executive’s emergency legislative power.
• Re-promulgation is the abuse, and the leading authorities are both state cases.
  • D.C. Wadhwa v. State of Bihar (1987) exposed a system in which Bihar had kept hundreds of ordinances alive for years by re-promulgating them without ever placing them before the legislature; the Supreme Court called it a fraud on the Constitution and a subversion of the democratic process.
  • Krishna Kumar Singh v. State of Bihar (2017), decided by a seven-judge bench, went further: the requirement to lay an ordinance before the legislature is mandatory, not directory; re-promulgation is unconstitutional; and an ordinance that lapses does not automatically create enduring rights.
  • The Court also held that the satisfaction of the Governor is not immune from judicial review, though the standard remains deferential.
• Ordinance use has not declined. States promulgated 127 ordinances in 2025, up from 100 in 2024 — in a year when assemblies sat, on average, for twenty-four days.

Assent under Articles 200 and 201, as it bears on the legislature’s output

• A bill passed by the state legislature is not law until the Governor acts under Article 200, and he may assent, withhold assent, return a non-money bill for reconsideration, or reserve it for the President under Article 201.
  • The Governor’s role in assent belongs properly to the study of the state executive, but it must be registered here because it is the point at which the legislature’s output can be nullified without a vote.
• The recent constitutional churn matters for the legislature’s effectiveness. After the Punjab (2023) and Tamil Nadu (2025) decisions had begun to prescribe timelines and even deemed assent, the Supreme Court’s advisory opinion on the Presidential Reference, November 2025 held that no timelines can be judicially prescribed, that the Constitution admits no concept of deemed assent, and that decisions under Articles 200 and 201 are not justiciable on their merits — while leaving a limited mandamus available against prolonged, unexplained and indefinite inaction.
  • The practical result is that an elected assembly’s legislation can still be delayed by an unelected appointee, with only a weak and slow remedy.

Audit and the Public Accounts Committee

• Article 151(2) requires the Comptroller and Auditor General to submit reports on the accounts of a state to the Governor, who causes them to be laid before the state legislature.
  • CAG state reports are the single richest source of scrutiny material available to a state legislature, covering finance accounts, appropriation accounts and performance audits of state schemes and public sector undertakings.
• The state Public Accounts Committee examines those reports, and by convention is chaired by a member of the opposition.
  • The PAC is a post-mortem body: it examines expenditure already incurred and cannot stop it.
  • In most states the CAG’s reports are tabled late, taken up later, and the PAC’s own reports are rarely discussed on the floor at all — so the audit chain ends in a filing cabinet.
• This is where the absence of a committee system bites hardest. A PAC without departmental standing committees behind it is a single body auditing an entire government.

Powers, privileges and immunities under Article 194

• Article 194 is a textual twin of Article 105 and confers on state legislatures, their members and committees the same privileges as Parliament.
  • Freedom of speech in the legislature, subject to the Constitution and to the rules and standing orders.
  • Immunity from any court proceedings in respect of anything said or any vote given in the house or its committees.
  • Immunity for publication of reports, papers, votes or proceedings under the authority of the house.
  • Article 212 insulates proceedings from judicial inquiry on grounds of procedural irregularity, as Article 122 does at the Union.
• The privileges were never codified. The Constitution originally referred them to the privileges of the House of Commons, and the 44th Amendment (1978) replaced that reference with the formula “as they had immediately before the coming into force of section 26 of that Act” — leaving the content unchanged and still uncodified.
• Non-codification is a live civil-liberties problem at state level more than at the Union, because state assemblies have used privilege against journalists and critics with far less scrutiny.
  • The classic authority is the Keshav Singh case (1965), a Presidential Reference arising from the Uttar Pradesh assembly’s committal of a citizen and its subsequent confrontation with the Allahabad High Court — the fullest judicial exposition of the relationship between privilege and fundamental rights.
  • M.S.M. Sharma v. Sri Krishna Sinha (1959), the Searchlight case, had earlier upheld the primacy of privilege over Article 19(1)(a).
  • Raja Ram Pal v. Speaker, Lok Sabha (2007) settled that the exercise of privilege is subject to judicial review for illegality and unconstitutionality, though not for irregularity of procedure.
• The argument for codification rests on three grounds that apply with special force to states: legal certainty for the press, the elimination of a jurisdiction where the house is judge in its own cause, and the incongruity of importing an uncodified British doctrine into a system where the Constitution, not the legislature, is sovereign.

The actual working: how far the state legislature has fallen

The Constitution set a ceiling on the gap between sessions and no floor under the number of sittings, and the states have legislated in the space that silence created. The result is not a legislature that scrutinises badly; it is a legislature that in most states does not scrutinise at all, and whose principal function has become the ratification of decisions taken elsewhere.

The measurable decline

• Sitting days have collapsed to a fraction of Parliament’s. State assemblies met for an average of 24 days in 2025, against 21 in 2024 — roughly three working weeks in a year.
  • The spread is enormous: Nagaland sat for 7 days and Odisha for 43.
  • Measured in hours the picture is worse — an average of about 133 hours a year, with Maharashtra averaging nine hours per sitting and West Bengal three.
• Legislation is passed without deliberation. Around 30% of bills in 2025 were passed on the day of introduction or the next day.
  • Seven legislatures — Andhra Pradesh, Bihar, Gujarat, Jharkhand, Mizoram, Puducherry and Punjab — passed every one of their bills within that window.
• Committee scrutiny is close to non-existent. Among the states for which data is available, only about 5% of bills introduced were referred to committees.
  • Most states have no system of departmentally related standing committees at all, the mechanism that does the real work at the Union.
  • Kerala’s subject committees are the standing exception, with a structure that examines bills and departmental performance systematically; a handful of other states have partial arrangements.

“Congress in session is Congress on public exhibition, whilst Congress in its committee-rooms is Congress at work.” — Woodrow Wilson

• Ordinance-heavy governance fills the vacuum. With 127 ordinances in 2025, several states now legislate substantially through the executive, with the legislature reduced to ratifying after the fact.
• Question hours, private members’ business and financial scrutiny suffer the same compression: where a house sits for twenty days, demands for grants for an entire state government are routinely guillotined without discussion.

Disruption, suspension and the presiding officer

• Disruption is now a standard opposition instrument, and in short sessions it is proportionately far more destructive than at the Union — a week lost from a twenty-day year is a fifth of the legislative calendar.
• Mass suspensions have become the standard government response, and the Supreme Court has had to set a constitutional limit.
  • In Ashish Shelar v. Maharashtra Legislative Assembly (2022) the Court struck down the suspension of twelve MLAs for one year, holding it grossly illegal and irrational.

“The resolution directing suspension of the twelve members beyond the period of the remainder of the session is worse than expulsion, disqualification or resignation.” — Supreme Court of India, Ashish Shelar v. Maharashtra Legislative Assembly

• The Court’s reasoning turned on Article 190(4): since a seat may be declared vacant after sixty days’ absence, a suspension longer than the remainder of the session leaves a constituency unrepresented in a way the Constitution never contemplated, and amounts to the house arrogating a power of expulsion by another name.
• The Speaker’s neutrality is the weakest link in the state system. The office adjudicates defections that decide who governs, while its holder remains a member of the governing party with a political future to protect.

The anti-defection law in state assemblies

• The Tenth Schedule was inserted by the 52nd Amendment (1985) to end the era of floor-crossing, and it did change the form of defection without ending the practice.
  • The 91st Amendment (2003) deleted the one-third “split” exception that had legalised organised defection, retained only merger by two-thirds, capped the council of ministers at 15% of assembly strength, minimum twelve, and barred a member disqualified for defection from holding ministerial office for the remainder of the term.
• Kihoto Hollohan v. Zachillhu (1992) upheld the Schedule but struck down paragraph 7’s ouster of judicial review for want of ratification under Article 368, and held that the Speaker acts as a tribunal whose decision is subject to review — though only after it is made.
• That last qualification created the defect that dominates state politics: the Speaker can simply not decide.
  • Keisham Meghachandra Singh v. Speaker, Manipur (2020) held that Speakers should ordinarily decide disqualification petitions within three months, and suggested Parliament consider transferring the jurisdiction to an independent tribunal headed by a retired judge.
  • Subhash Desai v. Governor of Maharashtra (2023), arising from the Shiv Sena split, held that the Governor had no objective material to call a floor test on the basis of intra-party dissent and that the Speaker must determine the whip of the real political party — while declining to restore the fallen government.
  • In 2025 the Supreme Court directed the Speaker of the Telangana assembly to decide within three months on defections by Bharat Rashtra Samithi MLAs to the Congress, holding that a presiding officer enjoys no immunity from judicial direction where inaction defeats the Tenth Schedule.
• The 2003 reform closed the retail route and opened the wholesale one. Defection now takes the form of engineered resignations followed by by-elections, or of a two-thirds “merger”, or of a Speaker’s indefinite silence — all of which the law formally permits.

Why executive dominance is more complete at state level

• Smaller houses mean tighter control. In an assembly of sixty to two hundred, the council of ministers plus parliamentary secretaries and office-holders is a substantial fraction of the ruling party’s own strength.
• Weaker legislator capacity. MLAs have no research support, no equivalent of the Union’s legislative research services, no personal staff for policy work, and in most states no committee through which to build expertise.
• Drafting capacity sits entirely in the executive. Bills are drafted by departments and the state law department; the legislature has no independent drafting or costing capability of any kind.
• Media and civil society scrutiny is thinner, concentrated in the state capital and on the ruling party’s internal politics rather than on legislative content.
• The Union’s own dominance compounds it: a state legislature’s competence is bounded by parliamentary law under Articles 249, 250, 252 and 254, and its output can be held up under Article 200.

India’s most consequential legislation — on land, police, health and schooling — is made by the houses that deliberate least.

Majorities, defection and government stability

• The Constitution assumes that a majority produces a stable government, and Indian state politics has spent sixty years demonstrating that it does not.
• The defection era began in 1967, when Congress lost power in a large number of states simultaneously and the arithmetic of coalition made individual legislators pivotal.
  • Roughly two thousand legislators changed sides in the four years that followed and dozens of state governments fell, giving the language the phrase “Aya Ram Gaya Ram” after a Haryana MLA who crossed the floor repeatedly in a single day.
  • The response was not immediate: the Tenth Schedule came eighteen years later.
• The floor test is the constitutional answer to the question of who governs, and it was established as such in a state case.
  • S.R. Bommai v. Union of India (1994) held that the majority enjoyed by a ministry must be tested on the floor of the house, not assessed in the Governor’s subjective judgement, and made Article 356 proclamations justiciable.
  • Rameshwar Prasad v. Union of India (2006) struck down the dissolution of the Bihar assembly on a Governor’s report about anticipated horse-trading, holding that the possibility of defection is not a ground to pre-empt the house.
  • Nabam Rebia v. Deputy Speaker (2016) restored the Arunachal Pradesh assembly, limiting the Governor’s power to summon and advance sessions against ministerial advice.
  • Shivraj Singh Chouhan v. Speaker, Madhya Pradesh (2020) upheld the Governor’s power to direct a floor test where he has objective reason to believe the ministry has lost confidence.
• Why a numerical majority fails to deliver stability is a question about parties, not about arithmetic.
  • Coalition and post-poll realignment make the identity of the majority contestable rather than given.
  • The 91st Amendment’s two-thirds merger route converts a party split into a lawful transfer of a bloc, so defection scales up instead of disappearing.
  • Resignation-and-re-election evades the Tenth Schedule entirely, because a member who resigns is not disqualified and may recontest on another ticket.
  • The Speaker’s discretion over timing means the law’s operation depends on a partisan officeholder’s calendar.
  • The 15% ministerial cap removed one incentive but left others — chairmanships of boards and corporations, which no cap touches.
• The deepest effect of the anti-defection law is on the legislature as a deliberative body, not on stability. A member who cannot vote against the whip on any matter that could be treated as a confidence question has no independent legislative voice, so the law that was meant to protect the mandate ended by removing the individual legislator from the process of legislation.

The reform agenda for state legislatures

• A guaranteed minimum number of sittings. The National Commission to Review the Working of the Constitution (2002) recommended a minimum of 100 days a year for larger state legislatures and 60 for smaller ones, and no state approaches either figure.
  • The obligation should attach to the house and not to the executive that summons it, since Article 174 currently gives the government control over the calendar.
• Mandatory committee reference. Bills other than those certified urgent should stand referred to a departmental committee unless the house resolves otherwise.
  • This requires first building the committees: a system of departmentally related standing committees in every state, on the Union model, with the Kerala subject-committee experience as the domestic template.
• Research and drafting support for legislators. Independent legislative research services, a state-level equivalent of budget analysis capacity, and personal staff for members.
• Independent legislative drafting capacity attached to the legislature rather than the executive, so that scrutiny does not depend on the goodwill of the department that wrote the bill.
• A code of conduct and a convention for the Speaker, including resignation from the party on election, a fixed time limit for Tenth Schedule decisions, and — as the Supreme Court itself has suggested — the transfer of defection adjudication to an independent tribunal.
• Codification of privileges under Article 194, to end the uncertainty that presently exposes journalists and citizens to a jurisdiction with no defined content.
• Strengthening the Council where it exists rather than abolishing it: a longer delaying power, a genuine revising role over subordinate legislation, and enforcement of the Article 171(5) categories for nomination would give the chamber a function it can actually perform.
• Live telecast and structured publication of proceedings, questions and committee reports, which several states still do not provide.

The High Courts in the constitutional scheme

The High Court is the only institution in the Indian judicial system that is simultaneously a state institution and part of an integrated national judiciary. Its judges are appointed by the President, paid from the state’s consolidated fund, and removable only by Parliament; it supervises every court and tribunal in the state; and it holds a writ jurisdiction that the Constitution deliberately drew wider than the Supreme Court’s. That combination has made it the workhorse of Indian constitutional law.

• Articles 214 to 231 constitute and empower the High Courts, and the design rests on three decisions taken in the Constituent Assembly.
  • Article 214 — there shall be a High Court for each state, which makes the court a state-level institution in form.
  • Article 231 — Parliament may establish a common High Court for two or more states, or for a state and a Union Territory, which qualifies that form immediately.
  • Article 230 — Parliament may extend or exclude the jurisdiction of a High Court in relation to a Union Territory.
• There are 25 High Courts at present. The number is not fixed by the Constitution and has grown with the reorganisation of states.
  • The three oldest — Calcutta, Bombay and Madras — were established in 1862 under the Indian High Courts Act, and predate the Constitution by nearly ninety years.
  • The most recent additions came in 2019, when the common High Court at Hyderabad was bifurcated into separate High Courts for Telangana and Andhra Pradesh, taking the total to 25.
  • The High Court of Jammu and Kashmir and Ladakh was reconstituted in 2019–21 as a common court for two Union Territories, an instance of Article 231 operating in reverse.
• Six High Courts serve more than one state or Union Territory, and the pattern shows how weak the “one court per state” principle really is.
  • Bombay — Maharashtra, Goa, and Dadra and Nagar Haveli and Daman and Diu.
  • Guwahati — Assam, Nagaland, Mizoram and Arunachal Pradesh.
  • Calcutta — West Bengal and the Andaman and Nicobar Islands.
  • Madras — Tamil Nadu and Puducherry; Kerala — Kerala and Lakshadweep; Punjab and Haryana — Punjab, Haryana and Chandigarh.
• Article 215 makes every High Court a court of record, with all the powers of such a court including the power to punish for contempt of itself.
  • The power is constitutional, not statutory: the Contempt of Courts Act regulates its exercise but cannot take it away.
  • Contempt jurisdiction is also the ground of the standing criticism that the court judges its own cause, and that the offence of “scandalising the court” survives in India after being abolished in England.

Composition, appointment and tenure

Judges and their appointment

• Article 216 provides that a High Court shall consist of a Chief Justice and such other judges as the President may from time to time deem it necessary to appoint.
  • There is no constitutionally fixed strength — the sanctioned strength of each High Court is fixed by the executive, which is itself a lever over the court’s capacity.
• Article 217 governs appointment: every judge is appointed by the President by warrant under his hand and seal, after consultation with the Chief Justice of India, the Governor of the state, and — for judges other than the Chief Justice — the Chief Justice of the High Court.
• Qualifications under Article 217(2): a citizen of India who has either
  • held judicial office in India for at least ten years, or
  • been an advocate of a High Court (or two or more such courts in succession) for at least ten years.
  • There is no “distinguished jurist” route to a High Court. That category exists only for the Supreme Court under Article 124(3)(c), which is a real asymmetry given how often academic expertise is invoked in constitutional cases.
• “Consultation” became “concurrence” through judicial interpretation, in three stages.
  • S.P. Gupta (First Judges Case, 1981) held that consultation did not mean concurrence and that the executive had primacy — the position for a decade.
  • Supreme Court Advocates-on-Record Association v. Union of India (Second Judges Case, 1993) reversed it, holding that the CJI’s opinion, formed collectively, has primacy, and created the collegium.
  • In re Special Reference (Third Judges Case, 1998) clarified the mechanism: for High Court appointments the collegium is the CJI and the two senior-most Supreme Court judges, acting on a proposal initiated by the Chief Justice of the High Court in consultation with his two senior-most colleagues.
  • The 99th Amendment and the National Judicial Appointments Commission Act (2014) attempted to replace this with a commission; both were struck down in 2015 as violating judicial independence, a basic feature.
• The collegium has no textual basis in Article 217, which is the enduring criticism — the appointing process for the constitutional courts is entirely judge-made.
  • Jurists including Fali S. Nariman, Ruma Pal and S.S. Sodhi have criticised it from within the profession for opacity, the absence of recorded criteria, and susceptibility to kinship networks.
  • Article 217(3) adds a small but revealing provision: any question about a judge’s age is decided by the President in consultation with the CJI, and that decision is final.

Tenure, removal and the retirement age

• A High Court judge holds office until the age of 62, against 65 in the Supreme Court, and may resign to the President or be removed in the manner provided for a Supreme Court judge.
  • Article 218 applies Article 124(4) and (5) to High Court judges, so removal requires a motion in each house of Parliament passed by a majority of total membership and two-thirds of members present and voting, on the ground of proved misbehaviour or incapacity, following an inquiry under the Judges (Inquiry) Act, 1968.
  • Article 221 charges salaries on the Consolidated Fund of the State and pensions on the Consolidated Fund of India, and bars variation to a judge’s disadvantage after appointment.
  • Article 220 bars a permanent judge, after ceasing to hold office, from pleading in any court or before any authority except the Supreme Court and other High Courts — a partial restriction that does not touch tribunals or arbitration.
• The three-year gap in retirement ages is a structural problem, not a detail.
  • It creates a differential incentive: a High Court judge approaching 62 has an interest in elevation to the Supreme Court, and elevation is controlled by the collegium and cleared by the government.
  • The same logic applies to post-retirement appointments — tribunals, commissions, gubernatorial office — which are in the executive’s gift.
  • The reform argument for parity is that raising the High Court age to 65 would remove a lever over sitting judges, retain experienced judges when vacancies are at their worst, and reduce the pull of post-retirement office. The counter-argument is that it would slow elevations and block promotion prospects for the district judiciary.

Transfers under Article 222

• Article 222 permits the President to transfer a judge from one High Court to another after consultation with the Chief Justice of India, with a compensatory allowance.
  • The text says nothing about consent, nothing about grounds, and nothing about a right to be heard — which is precisely why the provision has been so contentious.
• The Emergency established the pattern the provision is now remembered for. Sixteen High Court judges were transferred in 1976, several of whom had ruled against the government in habeas corpus and detention matters.
  • Union of India v. Sankalchand Himatlal Sheth (1977) held that a transfer may be made without the judge’s consent but only in the public interest, and that consultation with the CJI must be full and effective.
  • S.P. Gupta (1981) upheld the transfer policy; the Second and Third Judges Cases brought transfers within the collegium’s control, requiring the CJI to consult a plurality of judges and the Chief Justices of both courts concerned.
• The controversy over transfer as punishment has not gone away. A transfer that follows an adverse finding, a controversial judgment or an allegation of misconduct is publicly read as a sanction, and the collegium’s resolutions rarely disclose reasons.
  • The 2025 transfer of a Delhi High Court judge to the Allahabad High Court, following the discovery of cash at his official residence and pending an in-house inquiry, provoked an indefinite strike by the Allahabad Bar on the ground that a court under suspicion of impropriety was being sent a judge under a cloud.
  • The episode illustrates the deeper problem: transfer is the only intermediate sanction available, because the only formal remedy — parliamentary removal — has never once succeeded in India.

Additional, acting and ad hoc judges

• Article 224 provides for additional and acting judges.
  • Additional judges may be appointed for a period not exceeding two years where the President is satisfied that the business of a High Court has temporarily increased or arrears have accumulated.
  • Acting judges may be appointed when a permanent judge (other than the Chief Justice) is temporarily absent or acting as Chief Justice.
  • Article 223 provides for an acting Chief Justice when the office is vacant or its holder absent — an arrangement that has become semi-permanent in several High Courts.
• Article 224A permits a retired judge to sit and act as a judge of a High Court, at the request of the Chief Justice with the previous consent of the President, drawing such allowances as the President determines.
  • The provision lay almost unused for decades. In Lok Prahari v. Union of India (2021) the Supreme Court laid down guidelines for its use, and in January 2025 it substantially relaxed them in view of pendency — permitting each High Court to appoint two to five ad hoc judges, subject to a ceiling of about ten per cent of sanctioned strength, to sit with a sitting judge principally on criminal appeals.
  • The reform is a candid admission that the appointment process cannot fill sanctioned posts fast enough to hold the backlog steady.

The jurisdiction of the High Court

Original and appellate jurisdiction

• Original jurisdiction is of several kinds, and varies between courts.
  • Writ jurisdiction under Article 226 — the most important, and the only one available in every High Court.
  • Ordinary original civil jurisdiction above a pecuniary limit in the presidency High Courts of Calcutta, Bombay and Madras, and in Delhi and Himachal Pradesh — a colonial inheritance.
  • Admiralty, probate, matrimonial causes, contempt and company law where conferred by statute.
  • Enforcement of election petitions relating to state assemblies and Parliament under the Representation of the People Act.
  • Article 228 — the power to withdraw a case pending in a subordinate court which involves a substantial question of law as to the interpretation of the Constitution, and either decide the whole case or determine the question and remit it.
• Appellate jurisdiction is the court’s daily work and the source of most of its pendency.
  • Civil appeals from district courts and, in the presidency courts, intra-court appeals from a single judge to a division bench under the Letters Patent.
  • Criminal appeals from sessions courts, and mandatory confirmation of death sentences under section 407 of the criminal procedure law — a High Court must confirm a capital sentence before it can be executed.
  • Appeals and references from a wide range of statutory tribunals and revenue authorities.
• Article 225 preserves the jurisdiction of, and the law administered in, the High Courts as it existed at the commencement of the Constitution, subject to the Constitution and to legislation.
• Article 229 gives the Chief Justice control over the appointment of officers and servants of the court and over its administrative expenses, which are charged on the Consolidated Fund of the State — the financial guarantee of institutional independence.

Article 226 — the wider writ

• Article 226 empowers every High Court to issue directions, orders or writs, including the writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari, for the enforcement of fundamental rights “and for any other purpose”.
• The five writs, in outline:
  • Habeas corpus — “you may have the body”; an order to produce a detained person and to release him if the detention has no legal justification. Available against the state and against private persons.
  • Mandamus — “we command”; an order to a public authority to perform a public duty it has refused to perform. Not available against a private individual, the President or Governor, or a chief justice acting judicially.
  • Prohibition — issued to an inferior court or tribunal to stop it proceeding in excess of jurisdiction; preventive, and available only at an earlier stage.
  • Certiorari — issued to quash an order already made by an inferior court, tribunal or, since the 1990s, any authority acting judicially or administratively in excess of jurisdiction or in breach of natural justice; curative, and available at a later stage.
  • Quo warranto — “by what authority”; an inquiry into the legality of a person’s claim to a public office, and his ouster if the claim fails. Any interested person may apply, since the public has an interest in the point.
• Article 226 is wider than Article 32 in three distinct ways, and this is the single most important comparison in the whole subject.

Dimension	Article 32 (Supreme Court)	Article 226 (High Court)
Purpose	Only for enforcement of fundamental rights	Fundamental rights and “for any other purpose” — that is, ordinary legal and statutory rights
Nature of the power	Itself a fundamental right; the Court cannot refuse relief	A constitutional power, discretionary in exercise; relief may be refused for laches, alternative remedy, or conduct
Territorial reach	All-India	The territory over which the court exercises jurisdiction, plus any place where the cause of action arises wholly or in part (Article 226(2))
Respondents	State and instrumentalities under Article 12	“Any person or authority” — including private bodies discharging a public function
Suspension	Enforcement suspendable under Article 359 during emergency	The remedy for non-fundamental rights survives such a proclamation
Volume	A few thousand petitions	The overwhelming majority of Indian public law litigation

• The reach over private bodies performing public functions is the least appreciated element and the most practically significant.
  • Andi Mukta Sadguru Trust v. V.R. Rudani (1989) held that mandamus lies against a private aided college discharging a public duty; the form of the body is irrelevant if the function is public.
  • Zee Telefilms v. Union of India (2005) held that the Board of Control for Cricket in India was not “State” under Article 12, but that an aggrieved party could nonetheless move the High Court under Article 226 because the Board performs public functions.
  • The doctrine allows Article 226 to follow the state as it withdraws behind privatised and self-regulatory bodies — a reach Article 32 does not have.
• The discretionary character cuts both ways. Because Article 226 is not itself a fundamental right, a High Court may refuse a petition where an efficacious alternative remedy exists — but that discretion also lets it entertain a matter no other forum will hear.

Article 227 — superintendence

• Article 227 vests in every High Court the power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction, excepting only courts constituted under any law relating to the armed forces.
• The power is both judicial and administrative, which is what distinguishes it from an appellate power.
  • Judicial superintendence allows the court to correct grave errors of jurisdiction, violations of natural justice, and perverse findings by subordinate courts and tribunals, even where no appeal lies.
  • Administrative superintendence allows it to call for returns, prescribe general rules and forms for the practice and proceedings of subordinate courts, and settle tables of fees.
• This is a power the Supreme Court does not possess in the same form. The Supreme Court’s control over High Courts is appellate and through Article 141; it has no general power of superintendence over them.
  • Waryam Singh v. Amarnath (1954) established the breadth of the power; later decisions have insisted it be exercised sparingly and not as a disguised appeal.
  • The combination of Articles 226 and 227 with Articles 233 to 235 makes the High Court the constitutional head of the state’s entire judicial administration.

L. Chandra Kumar and the tribunal question

• The 42nd Amendment (1976) inserted Articles 323A and 323B, permitting Parliament and state legislatures to establish administrative and other tribunals and — critically — to exclude the jurisdiction of all courts except the Supreme Court under Article 136.
  • The design was to relieve the High Courts of service and taxation matters by creating specialised forums with finality.
  • S.P. Sampath Kumar (1987) upheld the Administrative Tribunals Act on the footing that the tribunals were an effective substitute for the High Courts.
• L. Chandra Kumar v. Union of India (1997), a seven-judge bench, reversed that footing and reshaped the entire law of tribunals.
  • It struck down Article 323A(2)(d) and the corresponding part of 323B(3)(d) to the extent that they excluded the jurisdiction of the High Courts under Articles 226 and 227.
  • It held that tribunals are courts of first instance in their fields, not substitutes for the High Courts, and that their decisions are subject to scrutiny by a division bench of the High Court within whose jurisdiction the tribunal falls.
  • Litigants could no longer approach the Supreme Court directly from a tribunal under Article 136 without first going to the High Court.

“The power of judicial review vested in the High Courts under Article 226 and in the Supreme Court under Article 32 is an integral and essential feature of the Constitution, constituting part of its basic structure.” — Supreme Court of India, L. Chandra Kumar v. Union of India

• The consequences are large and double-edged.
  • The judgment entrenched Article 226 review beyond the reach of constitutional amendment in practice, since the basic structure doctrine now protects it.
  • It also returned to the High Courts the very caseload tribunalisation was meant to remove, adding an appellate layer instead of substituting for one, and lengthening the journey of a service dispute to three or four tiers.
  • Subsequent litigation on tribunal composition and tenure — culminating in repeated strike-downs of tribunal reform legislation — has left the tribunal system in a state of permanent constitutional contestation.

Control over the district and subordinate judiciary

• Articles 233 to 237 vest the subordinate judiciary in a shared arrangement between the Governor and the High Court, with the balance tilted toward the court.
  • Article 233 — district judges are appointed, posted and promoted by the Governor in consultation with the High Court. A person not already in the service of the Union or the state is eligible only if he has been an advocate or pleader for at least seven years and is recommended by the High Court.
  • Article 234 — persons other than district judges are appointed to the judicial service by the Governor in accordance with rules made after consultation with the State Public Service Commission and the High Court.
  • Article 235 — control over district courts and courts subordinate to them, including posting, promotion and grant of leave, is vested in the High Court.
  • Article 236 defines “district judge” and “judicial service”; Article 237 allows the Governor to extend these provisions to specified magistrates.
• The arbitrariness reformers identify lies in the division itself. Appointment is a state executive function exercised through a state commission under state rules, while control after appointment is a High Court function.
  • Recruitment standards, examination quality, cadre strength, pay and infrastructure therefore vary enormously from state to state, and the judge who tries the overwhelming majority of Indian cases is recruited by twenty-five different systems of uneven quality.
  • Vacancies persist because the state must notify posts, the commission must examine, and the High Court must concur — three actors, none of whom is accountable for the vacancy.
• The Supreme Court has repeatedly legislated into this space through the All India Judges Association litigation, which produced the First National Judicial Pay Commission (the Shetty Commission, 1999) and the Second National Judicial Pay Commission, whose recommendations on pay and service conditions the Court directed states to implement.
  • In May 2025 the Court restored a requirement of three years’ practice at the Bar for entry into the Civil Judge (Junior Division) cadre, holding that appointing fresh law graduates straight from university had produced identifiable problems on the bench.
  • In August 2026, on review, the Court reduced that requirement to one year, coupling it with a structured year at a State Judicial Academy and six months of clerkship, to take effect for recruitment notified from April 2027.
  • The sequence is itself evidence of the point: the terms of entry into the district judiciary are being set by judicial order rather than by any legislature.

The actual working of the High Courts

The constitutional design gives the High Court an extraordinarily wide jurisdiction and then leaves the number of judges who exercise it to the executive, the choice of those judges to a body with no textual existence, and the pace of appointment to a bargain between the two. Everything that is wrong with the working of the High Courts follows from that arrangement, and none of it is new.

Vacancies

• The High Courts function at roughly seven-tenths of sanctioned strength, and have done so for years. As of 1 May 2026 the working strength stood at 797 judges against 325 vacancies — close to three posts in ten unfilled.
  • Sanctioned strength has risen over the past decade — from around 900 to about 1,120 — but working strength has risen more slowly, so raising the sanctioned figure has increased the vacancy count, not the number of judges.
  • The distribution is uneven and worst where the burden is heaviest: Allahabad, with the largest sanctioned strength in the country, carries the largest absolute shortfall, and Punjab and Haryana has run at roughly a third below strength.
  • Only a handful of High Courts have operated at full strength at any point in recent years, and several have functioned for extended periods under acting Chief Justices.
• Acting Chief Justices are a symptom worth naming: a court headed by an acting chief has weaker authority to initiate appointments, negotiate with the state government on infrastructure, or take administrative decisions with lasting effect.

Pendency

• The High Courts carry over 64 lakh pending cases, of which the larger share is civil, and roughly a quarter have been pending for more than ten years.
• The district and subordinate courts carry over five crore cases, of which criminal matters are close to four-fifths.
• The Union government is the largest single litigant, and its practice of appealing routinely — including in matters of small value and settled law — is a principal driver of the volume in both tiers.
• The arithmetic is unforgiving. A High Court judge disposing of an ordinary day’s board deals with dozens of matters; at three judges in ten unfilled and a five-crore national backlog, no plausible increase in individual productivity closes the gap.

The collegium, the government, and the Memorandum of Procedure

• The Memorandum of Procedure governs how appointments actually happen, and its revision has been deadlocked for over a decade.
  • When the Supreme Court struck down the National Judicial Appointments Commission in 2015, it directed that the existing Memorandum be revised to improve transparency, eligibility criteria and secretariat support.
  • Successive drafts have foundered on two points: the government’s insistence on a national security clause allowing it to reject a name on that ground, and its demand for a screening secretariat. The judiciary has resisted both as reintroducing executive primacy.
  • A decade on, no revised Memorandum has been finalised, so appointments proceed under a document neither side accepts.
• The tug-of-war operates through delay rather than refusal, which is why it is so difficult to attribute responsibility.
  • The High Court collegium proposes; the state government and Governor comment; the Union Ministry of Law forwards the file with an Intelligence Bureau report; the Supreme Court collegium recommends; the government processes; the President issues the warrant.
  • At each stage the file may simply sit. Names have been held for months and years without formal rejection, and the collegium has repeatedly complained of names cleared and then left unwarranted.
  • Reiteration is meant to be conclusive — under the Second Judges Case, a name reiterated unanimously by the collegium is binding on the government — but the government’s response to reiteration has often been silence rather than compliance.
  • The Supreme Court has attempted to impose timelines, directing that appointments follow within weeks of reiteration and that Intelligence Bureau inputs be furnished within a fixed period, but compliance has been partial.
  • Segregation compounds it: the government has cleared some names from a recommended list while holding others, which alters the seniority a judge would otherwise carry, and thus his prospects of elevation or of becoming a Chief Justice.
• The government’s counter-argument is not empty: it has told the Supreme Court that a substantial share of delay originates in the High Courts themselves, where collegia sit on proposals and fail to recommend against known vacancies, leaving hundreds of posts for which no name has ever been proposed.
• The result is a system in which no institution is accountable for a vacancy, because responsibility is genuinely distributed and each stage can point to the next.

Diversity and representation

• The social composition of the bench remains narrow. Of appointments made in recent years for which the government has published data, judges from the Scheduled Castes, Scheduled Tribes, Other Backward Classes and religious minorities together account for well under a quarter of the bench.
  • Among the roughly 790 judges in position in late 2023, only about two dozen were from the Scheduled Castes and around ten from the Scheduled Tribes.
  • Women are roughly one in seven judges of the higher judiciary, and several High Courts have gone long periods with one woman judge or none.
• Regional concentration is a second dimension: a small number of High Courts supply a disproportionate share of Supreme Court judges, and the practice of appointing outsiders as Chief Justices of High Courts has not translated into geographical balance on the bench itself.
• The structural cause is the appointment method, not any express bar. A collegium of sitting judges selects overwhelmingly from the Bar, where entry and success depend heavily on inherited networks and metropolitan practice, and it records no criteria against which its choices can be tested.

Accountability without a workable removal procedure

• The only method of removal is a parliamentary motion under Article 218 read with Article 124(4), and no judge has ever been removed by it.
  • Motions have failed at the voting stage, been rendered infructuous by resignation, or lapsed with the house.
• The in-house procedure — an inquiry by a committee of judges constituted by the Chief Justice of India, followed at most by a recommendation to resign or a withdrawal of judicial work — carries no legal force and produces no public finding unless the judiciary chooses to publish one.
• The 2025–26 proceedings against a sitting High Court judge, following the discovery of large quantities of cash at his official residence, tested every part of this machinery.
  • An in-house committee inquired and indicted him; the Supreme Court dismissed his challenge to those findings; he was transferred; removal motions were submitted in both houses; the Speaker admitted the motion and constituted an inquiry committee; and in January 2026 the Supreme Court rejected his challenge to the manner in which that committee was constituted.
  • Whatever its outcome, the episode demonstrated that the constitutional remedy is so slow and so political that transfer and withdrawal of work function as the real sanctions, neither of which is provided for as a disciplinary measure.

The High Court’s authority has grown while its capacity has not; a court with three posts in ten vacant and a decade-old backlog cannot deliver the remedies its jurisdiction promises.

Access, distance and language

• The demand for regional benches arises from the physical and financial distance between litigants and the constitutional courts.
  • Litigants from the far south, the north-east and the east must travel to Delhi to reach the Supreme Court, which effectively rations access by wealth and geography.
  • The Law Commission’s 229th Report (2009) proposed a Constitution Bench at Delhi and four Cassation Benches at Delhi, Chennai or Hyderabad, Kolkata and Mumbai, to hear all appellate work regionally while the Delhi bench heard constitutional matters.
  • The idea revives an older proposal for a National Court of Appeal, which the Supreme Court referred to a Constitution Bench in V. Vasanthakumar v. H.C. Bhatia (2016) without resolution.
  • Successive Chief Justices and the Union government have opposed it, arguing that splitting the apex court would fragment the law, dilute the court’s unitary character, and require a constitutional amendment.
  • The counter-argument is that the Supreme Court already sits in small benches and already produces inconsistent law, so the fragmentation objection describes the present rather than the proposed system.
• The same argument applies within states: permanent benches and circuit benches of High Courts reduce distance, and demands for new benches are among the most persistent items in state politics, usually resisted by the Bar of the principal seat.
• The language question is the sharpest access issue in the higher judiciary.
  • Article 348 requires that all proceedings in the Supreme Court and every High Court be in English until Parliament provides otherwise.
  • Article 348(2) allows the Governor, with the previous consent of the President, to authorise the use of Hindi or the official language of the state in proceedings of that state’s High Court — but judgments, decrees and orders must still be in English unless Parliament legislates.
  • Four states — Rajasthan, Uttar Pradesh, Madhya Pradesh and Bihar — have such authorisation, all for Hindi and all of long standing. Proposals from Tamil Nadu, Gujarat, Karnataka, Chhattisgarh and West Bengal have been declined, the Union citing a full-court view of the Supreme Court against extension.
  • The asymmetry is politically combustible: Hindi is permitted in four High Courts while no other Indian language is permitted in any, which converts a question of access into a question of language policy.
  • Machine translation of judgments into regional languages, and the publication of translated decisions through the court’s own electronic reports, is the partial answer now being pursued — useful for the reader of a judgment, but not for the litigant who must argue his case.
• Technology has changed the surface of court practice without changing its distribution. Virtual hearings, electronic filing, digitised records and the e-Courts programme, now in its third phase with a multi-thousand-crore outlay, have made the record accessible and the hearing remote.
  • The gains are real for lawyers and litigants with bandwidth and devices, and negligible for those without, so digitisation risks reproducing the access gap in a new form.

The district judiciary and the All India Judicial Service

• Justice Madan Lokur’s bottom-up argument is the most useful starting point for judicial reform in India, and a corrective to a debate conducted almost entirely about the two constitutional courts.
  • Almost every litigant meets the judicial system at the district court, not at a High Court and never at the Supreme Court.
  • The principal problems — delay, infrastructure, adjournments, poor case management, undertrial detention — are concentrated at that level, and reforms at the top do not reach down.
  • Reform must therefore begin with court and case management at the trial level, an audit of pending cases (many of which can be disposed of in minutes with cooperation from the prosecution), and basic infrastructure and staffing.
  • Unless the district judiciary works, an average Indian’s experience of justice does not change, however impressive the constitutional jurisprudence above it.
• The condition of the district judiciary bears this out. Sanctioned strength is around twenty-five thousand judicial officers; vacancies have persistently run at around a fifth, and in several states above a quarter.
  • Court infrastructure — courtrooms, residential accommodation, record rooms, toilets and facilities for women litigants and lawyers — remains deficient in a large share of complexes, notwithstanding a centrally sponsored scheme running since 1993.

The case for an All India Judicial Service

• Article 312 permits the creation of new All India Services, and the 42nd Amendment (1976) expressly extended it to an All India Judicial Service, with the caveat in Article 312(3) that such a service shall not include any post inferior to that of a district judge.
  • Creation requires a resolution of the Rajya Sabha supported by not less than two-thirds of members present and voting, declaring it necessary in the national interest, after which Parliament may legislate.
  • The requirement of a Rajya Sabha resolution is itself a federal safeguard: the chamber representing the states must consent before a central service is imposed on state administration.
• The proposal is not new. The Law Commission’s 14th Report (1958) proposed it; the 116th Report revived it; the Supreme Court endorsed it in the All India Judges Association litigation; and parliamentary standing committees have recommended it repeatedly. It has nonetheless never been enacted.

Argument	For an All India Judicial Service	Against
Quality of entry	A national competitive examination would attract stronger candidates than twenty-five uneven state examinations	Recruitment quality is a function of pay, prestige and training, not of who conducts the exam
Vacancies	A centralised annual cycle would fill posts on time instead of leaving them open for years	Vacancies arise from state finances and High Court concurrence, which a central service does not remove
Social representation	A national service with reservation would improve representation of Scheduled Castes, Scheduled Tribes and Other Backward Classes on the bench	Several states already have reservation in judicial services; a central service could dilute state-specific categories
Feeder to the higher judiciary	Would build a professional cadre from which High Court judges could be drawn on merit rather than through the Bar	Article 312(3) bars posts below district judge, so the service would touch only the top of the district cadre
Federalism	Judicial administration is already integrated; the Union appoints High Court judges	Article 233 places district judge appointment with the Governor in consultation with the High Court; a central service displaces both, and most states and several High Courts have objected on exactly this ground
Language	Officers can be trained in the state language and allotted by preference	Trial work is conducted in the regional language, evidence is recorded in it, and a judge who cannot follow a witness cannot try a case
Independence	Central recruitment insulates from local political pressure	Article 235 control by the High Court is weakened if a central authority handles cadre management

• The federalism objection is the decisive one politically. The states read the proposal as a transfer of one of the last significant appointing powers they hold, and the requirement of a Rajya Sabha resolution gives them the means to stop it — which is why the proposal has remained a recommendation for nearly seventy years.
• A middle path is available and is periodically proposed: a common national entrance examination conducted centrally for recruitment to state judicial services, with selection, allotment, language testing and cadre control remaining with the states and their High Courts. It would capture most of the quality and timeliness gains without displacing Articles 233 to 235.

The reform agenda for the judiciary

• Judge strength and the judge–population ratio. The Law Commission’s 120th Report (1987) recommended raising judicial strength to fifty judges per million population; India remains far below that figure even counting sanctioned rather than working posts.
  • Increasing sanctioned strength alone has demonstrably not worked, because the appointment machinery cannot fill what already exists. Strength and appointment reform have to move together.
• Vacancies. Time-bound processing at each stage, a fixed period after which a reiterated recommendation stands appointed, and public disclosure of the stage at which each file rests.
• Parity in retirement age between the High Courts and the Supreme Court, to remove a standing incentive and retain experienced judges.
• A rule on post-retirement appointments — the First Law Commission recommended against them altogether, and the standard reform proposal is a cooling-off period before any government appointment.
• Appointment of the Chief Justice of India and of High Court Chief Justices. The convention of strict seniority guarantees neither administrative capacity nor a tenure long enough to complete reform; the First Law Commission recommended selection on merit, and the counter-argument is that any departure from seniority hands the executive a lever.
• Reform of the collegium rather than its replacement: published criteria, a permanent secretariat, recorded reasons, declared consultation, and a finalised Memorandum of Procedure.
• Case and court management. Differentiated case-flow management, fixed trial dates, restrictions on adjournments, active docket control, and a national policy on government litigation to curb appeals by the largest litigant.
• Alternative dispute resolution. Arbitration, conciliation and mediation under a strengthened statutory framework, and pre-litigation mediation as a default in commercial and matrimonial matters.
• Lok Adalats and Gram Nyayalayas. National Lok Adalats settle very large numbers of compoundable and pre-litigation matters at low cost, and are the most effective disposal mechanism India has; the Gram Nyayalayas Act, 2008 by contrast envisaged mobile courts at the intermediate panchayat level and has been implemented in only a small fraction of the courts contemplated, because states have not funded them and the Bar has resisted.
• Court infrastructure, funded on a scale that matches the sanctioned strength it must house, including the residential and record facilities without which appointments cannot be made.
• The cost and complexity of litigation. Court fees, lawyers’ fees, repeated appearances and travel make the system unaffordable for the litigant it is designed to protect; strengthening legal aid under the Legal Services Authorities framework, simplifying procedure, and curbing multiple appeals are the direct answers.
• Language and accessibility — translation of judgments, regional-language pleadings where the Constitution permits, and plain-language drafting of orders.
• Technology — electronic records, e-filing, virtual hearings and open data on pendency through the national judicial data infrastructure, treated as a tool for management rather than as a reform in itself.

“Everything has been said already, but as no one listens, we must always begin again.” — André Gide, quoted in the report of the Malimath Committee

Conclusion

The state legislature and the High Court have failed and succeeded in opposite ways.

• The legislature was given ample powers and no obligations — no minimum sittings, no compulsory committee reference, no floor on scrutiny — and has contracted to the point where a house legislating on land, police, health and schooling meets for three weeks a year and passes a third of its bills within a day of introduction.
• The High Court was given an obligation far larger than its capacity: a writ jurisdiction wider than the Supreme Court’s, superintendence over every court and tribunal in the state, control of the district judiciary, and a strength fixed by the executive and filled through a bargain no one is accountable for.
• The two failures are connected. A legislature that does not scrutinise pushes disputes into court, and a court flooded with disputes cannot supply the scrutiny a legislature abandoned.
• Both remedies are institutional rather than constitutional. Neither problem requires an amendment: sitting days, committees, research support, appointment timelines, judge strength and case management are all reachable by ordinary law, rules and administrative will.
• The gap between envisaged role and actual working is, in both organs, a gap between power and capacity — a legislature with power it does not use, and a court with a mandate it cannot discharge.