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A Comparative

Study ofJudiciary in

France&

India

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We wish to express our sincere gratitude to ourteacher Ms. Mokshda Bhushan for providing uswith such an innovative project topic.OurCollege Amity Law School, Noida, for providingus an opportunity to do our project work on AComparative Study oj Judiciary in France andIndia This project bears on imprint of manypeoples. We would also thank our groupmembers for their kind co-operation to thecompletion of our project work. Last but notleast we wish to avail ourselves of thisopportunity, express a sense of gratitude andlove to our friends and our beloved parents fortheir manual support, strength, help and foreverything .

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Judiciary System In IndiaThe Indian Judiciary is partly a continuation of

the British legal system established by the English

in the mid-19th century based on a typical hybrid

legal system in which customs, precedents and

legislative law have validity of law.

The Constitution of India is the supreme legaldocument of the country. There are various levels

of judiciary in India different types of courts,

each with varying powers depending on the tier

and jurisdiction bestowed upon them. They form

a strict hierarchy of importance, in line with the

order of the courts in which they sit, withthe Supreme Court of India at the top, followed

by High Courts of respective states with district

judges sitting in District Courts and Magistrates

of Second Class and Civil Judge (Junior Division)

at the bottom. Courts hear criminal and civil

cases, including disputes between individuals and

the government. The Indian judiciary is

independent of the executive and legislative

branches of government according to the

Constitution.

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HistoryBefore the arrival of the British in India, India wasgoverned by laws based on The Arthashastra, datingfrom the 400 BC, and the Manusmriti from 100 AD. In fact

there existed two codes of laws one the Hindu code oflaws and the other Muslim code of laws. They wereinfluential treatises in India, texts that were consideredauthoritative legal guidance. Manusmriti's centralphilosophy was tolerance and pluralism. TheJudiciary,]the Executive, and the Legislature were thesame person the King or the Ruler of the Land. But thevillages had considerable independence, and had theirown panchayth system to resolve disputes among itsmembers. Only a bigger feud merited a trans villagecouncil. This tradition in India continued beyondthe Islamic conquest of India, and through to the MiddleAges. Islamic law "The Sharia" was applied only to

the Muslims of the country. But this tradition, along withIslamic law, was supplanted by the common law whenIndia became part of the British Empire. The history ofModern Judicial System in India starts from there.

Arthashastra

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Supreme Court of IndiaOn 28 January 1950, two days after India became a SovereignDemocratic Republic, the Supreme Court of India was born. Thenauguration took place in the Princes Chamber in the Parliamentbuilding complex which also housed both the Rajya Sabha and

the Lok Sabha , also known as the Council of States and theHouse of the People, respectively. It was here, in this Chamber ofPrinces, that the Federal Court of India had sat for 12 yearsbetween 1937 and 1950. This was to be the home of theSupreme Court for years that were to follow its creation, until theSupreme Court of India acquired its own building in 1958.

The inaugural proceedings were simple, but impressive. Theybegan at 9.45 a.m. when the Judges of the Federal Court - ChiefJustice Harilal J.Kania and Justices [Saiyid Fazl Ali], [M. PatanjaliSastri], [Mehr Chand Mahajan], [Bijan Kumar Mukherjea] and[S.R.Das] - took their seats. In attendance were the Chief Justicesof the High Courts of Allahabad, Bombay, Madras, Orissa, Assam,Nagpur, Punjab, Saurashtra, Patiala and the East Punjab StatesUnion, Mysore, Hyderabad, Madhya Bharat and Travancore-Cochin. Along with the Attorney General for India, Pankaj SinghKushwah were present the Advocate Generals of Bombay,Madras, Uttar Pradesh, Bihar, East Punjab, Orissa, Mysore,Hyderabad and Madhya Bharat. Present too, were Prime Minister,other Ministers, Ambassadors and diplomatic representatives of

foreign States, a large number of Senior and other Advocates ofthe Court and other distinguished visitors.Taking care to ensure that the Rules of the Supreme Court werepublished and the names of all the Advocates and agents of theFederal Court were brought on the rolls of the Supreme Court, thenaugural proceedings were over and put under part of the record

of the Supreme Court.

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After its inauguration on January 28, 1950,the Supreme Court commenced its sittings ina part of the Parliament House. The Courtmoved into the present building in 1958. The

building is shaped to project the image ofscales of justice. The Central Wing of thebuilding is the Centre Beam of the Scales. In1979, two New Wings - the East Wing and theWest Wing - were added to the complex. In allthere are 15 Court Rooms in the various

wings of the building. The Chief Justice'sCourt is the largest of the Courts located inthe Centre of the Central Wing.The original Constitution of 1950 envisaged aSupreme Court with a Chief Justice and 7

puisne Judges - leaving it to Parliament toincrease this number. In the early years, allthe Judges of the Supreme Court sat togetherto hear the cases presented before them. Asthe work of the Court increased and arrearsof cases began to accumulate, Parliament

increased the number of Judges from 8 in1950 to 11 in 1956, 14 in 1960, 18 in 1978 and26 in 1986. As the number of the Judges hasincreased, they sit in smaller Benches of twoand three - coming together in largerBenches of 5 and more only when required todo so or to settle a difference of opinion orcontroversy.

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The Supreme Court of India comprises the ChiefJustice and 30 other Judges appointed by thePresident of India, as the sanctioned full strength.Supreme Court Judges retire upon attaining theage of 65 years. In order to be appointed as aJudge of the Supreme Court, a person must be acitizen of India and must have been, for at leastfive years, a Judge of a High Court or of two ormore such Courts in succession, or an Advocate ofa High Court or of two or more such Courts insuccession for at least 10 years or he must be, inthe opinion of the President, a distinguished jurist.

Provisions exist for the appointment of a Judge of aHigh Court as an Ad-hoc Judge of the SupremeCourt and for retired Judges of the Supreme Courtor High Courts to sit and act as Judges of thatCourt.The Constitution seeks to ensure the independence

of Supreme Court Judges in various ways. A Judgeof the Supreme Court cannot be removed fromoffice except by an order of the President passedafter an address in each House of Parliamentsupported by a majority of the total membership ofthat House and by a majority of not less than two-

thirds of members present and voting, andpresented to the President in the same Session forsuch removal on the ground of provedmisbehavior or incapacity. A person who has beena Judge of the Supreme Court is debarred frompracticing in any court of law or before any otherauthority in India.

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The proceedings of the Supreme Court are conducted inEnglish only. Supreme Court Rules, 1966 are framedunder Article 145 of the Constitution to regulate the practiceand procedure of the Supreme Court.

The Supreme Court of India is the highest court of the landas established by Part five, Chapter four of the Constitutionof India. According to the Constitution of India, the role ofthe Supreme Court is that of a federal court, guardian of theConstitution and the highest court of appeal.Articles 124 to 147 of the Constitution of India lay down the

composition and jurisdiction of the Supreme Court of India.Primarily, it is an appellate court which takes up appealsagainst judgments of the High Courts of the states andterritories. However, it also takes writ petitions in cases ofserious human rights violations or any petetion filed underArticle 32 which is the right to constitutional remedies or if a

case involves a serious issue that needs immediateresolution. The Supreme Court of India had its inauguralsitting on 28 January 1950, and since then has deliveredmore than 24,000 reported judgments.

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ISSUES

According to the World Bank, "although India'scourts are notoriously inefficient, they at least comprisea functioning independent judiciary" A functioning

judiciary is the guarantor of fairness and a powerfulweapon against corruption. But peoples experiencesin fall far short of this ideal. Corruption in the judiciary

goes beyond the bribing of judges. Court personnel

are paid off to slow down or speed up a trial, or to makea complaint go away. Judges are also subject topressure from above, with legislators or the executiveusing their power to influence the judiciary, starting withskewed appointment processes. Citizens are oftenunaware of their rights, or resigned, after so many

negative experiences, to their fate before a corruptcourt. Court efficiency is also crucial, as a seriousbacklog of cases creates opportunities for demandingunscheduled payments to fast-track a case.

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1. JUDICIAL BACKLOG

Indian courts have large backlogs. For instance,the Delhi High Court has a backlog of 466 yearsaccording to its chief justice. This is despite theaverage processing time of four minutes and 55seconds in the court. In Uttam Nakate case, it tooktwo decades to solve a simple employment dispute.However it need to be mentioned that the concept ofbacklogs doesn't describe the actual reason for some

many cases lying in the courts. Rather the term"backlog" has been misused and the term "pendency"is the right word for describing the large number ofcases pending in the courts today. As could beunderstood, the largest number of cases that areactually pending in the Indian Courts are that of

minor Motor Vehicle Cases, petty crimes such asstealing, abusing, insult, slap, etc. It is an establishedfact which the Govt. of India accepts that there is40% shortage of judicial staff. Opposition and rulingparty's corrupt politicians profit from the delays inthe system.

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On January 12, 2012, a Supreme Court bench saidthat people's faith in judiciary was dwindling atan alarming rate, posing a grave threat toconstitutional and democratic governance of the

country. It sincerely acknowledged few of theserious problems such as -

Large number of vacancies in trial courts,Unwillingness of lawyers to become judges,Failure of the apex judiciary in filling vacant HC

judges posts,The dragging of feet by the Centre in keeping its

promises.It wanted to seek answers from the government

on amicus curiae's suggestion that access tojustice must be made a constitutional right and

consequently the executive must providenecessary infrastructure for ensuring every citizenenjoyed this right. It also wanted the Governmentof India to detail the work being done by theNational Mission for Justice Delivery and LegalReforms.

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2. JUDICIAL CORRUPTION

Corruption is rampant in India's courts. Accordingto Transparency International, judicial corruption in India isattributable to factors such as "delays in the disposal of cases,shortage of judges and complex procedures, all of which are

exacerbated by a preponderance of new laws". Most disturbingis the fact that corruption has reached the highest judicial forumi.e. Supreme Court of India. Some notable cases include:

1. In December 2009, noted social activist, campaigner for judicialaccountability and a Supreme Court lawyer PrashantBhushan in response to the notice of contempt issued by theSupreme Court (for his interview to a news magazine in whichhe had said, "out of the last 16 to 17 Chief Justices, half havebeen corrupt"), filed an affidavit standing by his earliercomments saying: "It is My Honest And BonafidePerception". Later In September 2010, he submitted asupplementary affidavit in which he submitted evidence to back

his allegations. In November 2010, former Law Minister,Shanti Bhushan echoed Prashant Bhushan's claim saying: Itis my firm belief that there is a lot of corruption in judiciary. I amsaying the same thing which Prashant Bhushan had said. Thequestion of apology does not arise. I will rather prefer to go to

jail. The judiciary cannot be cleansed unless the matter is

brought into the public domain.

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2. In June 2011, a very widely respected former Chief Justiceof India J. S. Verma echoed these views saying that"certain individuals with doubtful integrity were elevatedwithin the higher judiciary" He cited the case of Justice M.M. Punchhi, whose impeachment had been sought by thecampaign for judicial accountability. Justice Verma said hewas willing to permit the allegations to be probed but thepolitical executive refused to allow this. Justice Vermafurther explained, "Because the allegations, if proved,were serious and therefore they required to beinvestigated, so that one could know whether they weretrue or not." He acknowledged that Justice Punchhi waslater elevated to CJI despite facing "serious allegations".Justice Verma also talked about another former CJI K GBalakrishnan's continuance as National Human RightsCommission chairman. Justice Verma said, "He shouldhave demitted long back and if he doesn't do it voluntarily,the government should persuade him to do that,otherwise, proceed to do whatever can be done to seethat he demits office."

3. In November 2011, a former Supreme Court Justice RumaPal slammed the higher judiciary for what she called theseven sins. She listed the sins as:

1. Turning a blind eye to the injudicious conduct of acolleague

2. Hypocrisy the complete distortion of the norm ofjudicial independence

3. Secrecy the fact that no aspect of judicial conductincluding the appointment of judges to the High andSupreme Court is transparent

4. Plagiarism and prolixity - meaning that very often SCjudges lift whole passages from earlier decisions bytheir predecessors and do not acknowledge this

and use long-winded, verbose language.

http://en.wikipedia.org/wiki/Ruma_Palhttp://en.wikipedia.org/wiki/Ruma_Palhttp://en.wikipedia.org/wiki/Ruma_Palhttp://en.wikipedia.org/wiki/Ruma_Pal

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5. Self Arrogance wherein the higher judiciary hasclaimed crass superiority and independence tomask their own indiscipline and transgression ofnorms and procedures

6. Professional arrogance

whereby judges do not dotheir homework and arrive at decisions of graveimportance ignoring precedent or judicial principle

7. Nepotism wherein favors are sought anddispensed by some judges for gratification of

varying manner.

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JUDICIARY SYSTEM IN FRANCEIn France, judges are considered civil servants exercising oneof the sovereign powers of the state, and, accordingly, onlyFrench citizens are eligible for judgeship. France's

independent judiciary enjoys special statutory protectionfrom the executive branch. Procedures for the appointment,promotion, and removal of judges vary depending on whetherit is for the judicial, administrative, or audit court stream.Judicial appointments must be approved by a special panel, theHigh Council of the Judiciary, made up of other judges fromreceiving court. Once appointed, judges serve for life andcannot be removed without specific disciplinary proceedingsconducted before the Council conducted in due process.The Ministry of Justice handles the administration of courtsand judiciary including paying salaries or constructing newcourthouses. The Ministry also funds and administers theprison system. Lastly, it receives and processes applications

for presidential pardons and proposes legislation dealing withmatters of civil or criminal justice. The Minister of Justice isalso the head of public prosecution, though this iscontroversial since it is seen to represent a conflict ofinterest in cases such as political corruption againstpoliticians.

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Civil courtsLower Courts"Instance" CourtsThere are 297 "tribunal d'instance", inferior courts

with jurisdiction over several electoral districts(canton). This courts replaced the old Justice of thePeace Courts in 1958. Suits at this level may takeanywhere between 6 to 8 months."Grande instance" CourtsThe superior Court, or tribunal de grande instance, is

the court of general jurisdiction for civil mattersover 10 000 . Here, litigants are statutorily requiredto be represented by a lawyer, or avocat. There are158 mainland French superior courts with at least oneper county (dpartement).Specialist courts

Labor Tribunal (conseil de prud'hommes): hearsdisputes and suits between employers and employees(apart from cases devoted to administrative courts,see below); the court is said to beparitairebecause itis composed of equal numbers of representativesfrom employer unions, e.g., MEDEF and CGPME, andemployee unions.Land Estate Court (tribunal paritaire des bauxruraux): hears cases dealing with long-term leases forfarm land estates.Social Security Court (tribunal des affaires descurit sociale): handles suits welfare and statebenefits.

Business Tribunal (tribunal de commerce): hearsmatters involving trade and business disputes and thepanel is elected from the local business community.

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Intermediate appellate courtsCourt of AppealThere are over thirty courts of appeal (cour d'appel) inmainland France with one per province (rgion). The Court isdivided into a number of divisions or courts: social security,business, general civil, and criminal. This is the only court thatrequires the intervention of a solicitor or case attorney(avou) to prepare and manage your case and to act as anintermediary between the barrister and the appellant orappellee. Appeals may take anywhere from 18 to 24 months, ifnot longer.Supreme Court

Main article: Court of Cassation (France)The French Supreme Court of Judicature (French: Cour decassation) is France's court of last resort having jurisdictionover all matters tryable in the judicial stream but only scopeof review to determine a miscarriage of justice or certify aquestion of law based solely on issues of law. The Court is

located in the Hall of Justice building in Paris.The Supreme Court is the court of final appeal for civil andcriminal matters. As a judicial court, it does not hear casesinvolving claims against the government which generally fallwithin the purview of administrative courts, for which theCouncil of State acts as the supreme court of appeal. Nor

does the Court adjudicate constitutional issues; instead,constitutional review lies solely with the ConstitutionalCouncil. Therefore, France does not have one senior court, butfour (including the Tribunal of conflicts), and collectively,these four courts form the topmost tier of the court system.The Supreme Court was established in 1790 under the nameTribunal de cassation during the French Revolution, and itsoriginal purpose was to act as a court of error with revisoryjurisdiction over lower provincial prerogative courts(Parlements). However, much about the Court continues theearlier Paris Parlement Court.

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Criminal courtsPolice CourtThe Police Court, or tribunal de police, has summaryjurisdiction over all finable offences committed by adults,

those being misdemeanors or summary offences.For petty misdemeanors like most traffic violations,suspected offenders may either plea nolo contendere and paya set fine amount (amende forfaitaire) or contest the chargein court. The court may then find the defendant innocent orguilty, but if found guilty, they are liable to be sentenced a

higher fine.All criminal matters may pass summarily through the Court,but this court has limited original jurisdiction for cases whereprison stays are not a possible punishmentCriminal CourtThe Criminal Court, or tribunal correctionnel, has specialist

and limited original jurisdiction over most felonies orindictable offences.Court of SessionsThe Court of Sessions, or cour d'assises, has limitedjurisdiction over major felonies or indictable offences with aminimum of 10 year prison sentence, including violent crimeslike murder and rape or crimes against the State. This Courtis the only one to conduct proceedings in the form of a jurytrial, largely due to the severity of the crime.Juvenile CourtReferred to as tribunal pour enfants, the Court hasjurisdiction for most criminal offences being eithermisdemeanors or minor felonies committed by minors. Cases

are tried by bench trial panelled by a single judge.

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Cour d'assises des mineursThey judge crimescommitted by minors.Appellate courtsCriminal appeals from the Magistrate, central Criminal, oreither Juvenile courts are sent to the Criminal Division ofthe county Court of Appeal. Appeals may then pass to theSupreme Court.Jurisdictional courtThe Jurisdictional Court, or tribunal des conflits, handlesconflicts between the civil system of justice and the

administrative system of justice. There are two kinds ofconflicts:Positive conflict: both systems consider themselvescompetent for the same case.Negative conflict: both systems consider that the othersystem is competent for the case, resulting in a denial of

justice.In both cases, the tribunal des conflitswill render finaljudgment on which system is competent.

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Court of AuditThe financial courts - national Court of Audit (courdes comptes) and regional audit courts (chambresrgionales des comptes) - have jurisdiction to trycases involving possible misuse of public funds, and, insome rare instances, of private funds.They are empowered and mandated by Article 15 ofthe 1789 Declaration of the Rights of Man and of theCitizen which set forth that French citizens have theright to hold public officers, agents, and officialsaccountable for the finances they oversee and

operate. The courts' roles and responsibilities are laidout in the Financial Court Code.JurisdictionThe Court of Audit and regional audit courts mostlyadjudicate cases regarding public funds, carrying out:Mandatory audits of public accountants to track

national and local government funds.Discretionary audits of public corporations, publiclysubsidized private organizations, and social securityand welfare agencies.Since 1999, audits of private charities who regularlyreceive public donations.

Neither national or regional audit courts hear casesrelated to private organizations, with the fewexceptions noted here. Instead, financial casesconcerning private funds and money fall within the

jurisdiction of the civil justice system.

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Prior to 1982, France only had a single nationalCourt of Audit. With a push towarddecentralization in the creation of province-likeadministrative regions and the increased role oflocal elected officials and considering the

Court's enormous docket, France saw fit toestablish regional audit courts. The nationalcourt now deals primarily with the government,public establishments, and (semi-)publiccompanies on a national level, while the regionalcourts handle the local level. The court mayoccasionally delegate national-level audits toregional courts, as is often the case with post-secondary educational facilities.An important concept in the business of thefinancial courts is the difference between, inFrench public accountings,between ordonnateurs(managers who order

expenses and perception of payments)andpayeurs(the public accountants who payexpenses and recoup debts). The Court onlyjudges public accountants; but it may also makeobservations about the decisions taken bytheordonnateurs, and possibly send them before

other courts for mismanagement

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Justice activitiesThese jurisdictions act as courts in the ordinary sense of theword in some limited circumstances. That is, they judge theaccounting of public accountants (comptables publics) and mayfine them in case of certain failures:They may fine public accountants if they are late in handingover their accounting.They may find that the accountant neglected to collect moneyowed to the state (or other government) or, throughnegligence, unduly gave away state (or other government)money. The responsibility of the public accountant in thosecircumstances is personal and unlimited, meaning that he or

she has to refund all lost money. This situation is knownas dbet(from Latin: "he owes"). Because of the possibilityof dbet, all public accountants must have external warrantyas well as insurance. In practice, many dbetsgrossly exceedthe financial means of the public accountants concerned, andthe Minister of Finance may end up pardoning the debt

(remise gracieuse).They may find that somebody or some organization didaccounting operations on public funds whereas they were notpublic accountants. In those circumstances, they are found tobe de factopublic accountants (comptables de fait) and theyface the same constraints and penalties as de jurepublic

accountants.

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Other activitiesMost of the activity of the Cour des Comptesand the regionalchambers is not of a judicial kind (juridictionnel); rather, theyact as a general auditing system. However, even for theseactivities, they act with almost complete independence ofboth the executive and the legislative branches.The court and chambers may advise, or reprimand, ministries,administrations and public establishments that they audited.The court and chamber publish a yearly report in which itdiscusses a selection of misuses of funds and other incidents.In addition, they may also publish specialized reports. The

court and chambers are free to inquire on whatever they wishwithin their field of competency; the court may also becommissioned reports by Parliament.In all these advisory and publishing activities, the court andchambers do not limit themselves to pure accounting issues,but they also take the efficiency of public services into

account. They may, for instance, criticize an expense that waslegally ordered and accounted for, but which wasinappropriate with respect to criteria of good financialmanagement.The 2001 Loi d'orientation sur les lois de finances(LOLF, lawfixing the framework for budget acts) changed the way

budget was passed in France: now, budget is attributed tospecific missions, and the efficiency of spending on eachmission is to be assessed. In that context, the court'smissions will include an increased dose of assessment ofefficiency.

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1. http://en.wikipedia.org/wiki/Judiciary_of_France

2. http://www.mapsofworld.com/france/politics/judicial-system.html

3. http://www.nationsencyclopedia.com/Europe/France-JUDICIAL-SYSTEM.html

http://en.wikipedia.org/wiki/Judiciary_of_Francehttp://www.mapsofworld.com/france/politics/judicial-system.htmlhttp://www.mapsofworld.com/france/politics/judicial-system.htmlhttp://www.nationsencyclopedia.com/Europe/France-JUDICIAL-SYSTEM.htmlhttp://www.nationsencyclopedia.com/Europe/France-JUDICIAL-SYSTEM.htmlhttp://www.nationsencyclopedia.com/Europe/France-JUDICIAL-SYSTEM.htmlhttp://www.nationsencyclopedia.com/Europe/France-JUDICIAL-SYSTEM.htmlhttp://www.nationsencyclopedia.com/Europe/France-JUDICIAL-SYSTEM.htmlhttp://www.nationsencyclopedia.com/Europe/France-JUDICIAL-SYSTEM.htmlhttp://www.nationsencyclopedia.com/Europe/France-JUDICIAL-SYSTEM.htmlhttp://www.mapsofworld.com/france/politics/judicial-system.htmlhttp://www.mapsofworld.com/france/politics/judicial-system.htmlhttp://www.mapsofworld.com/france/politics/judicial-system.htmlhttp://www.mapsofworld.com/france/politics/judicial-system.htmlhttp://en.wikipedia.org/wiki/Judiciary_of_France