Judiciary systtem of india

8/12/2019 Judiciary systtem of india

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Judiciary System of India

Within the framework of

parliamentary democracy and federalism, judiciary plays an

important role in the governance of the country. The

judiciary is an indispensable part of governance and an

efficient and independent judiciary is the greatest guarantee

of well being of society.

Indeed, the Indian judiciary was seen to be an arm of thesocial revolution, upholding the equality and dignity of men

that the people of India suffered long during the colonial

days, but it has not been gained as yet.

In the governance of a democracy, judiciary plays a very

important role, which is second to none. The Constitution

accords a place of pride to the judiciary by conferring the

power of judicial review of legislative and administrative

actions and entrusting it with the task of enforcement of the

fundamental rights guaranteed under the Constitution.


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In fact, the judiciary assumes a significant and special

importance by virtue of its very task of sitting on judgment

on the actions of the other two organs and power of

interpreting the constitutional provisions.

Judiciary - the organisation for giving justice to the society,

occupies a position of pre-eminence among the three organs

of the State. Justice is considered, as a logical requirement of

any society for it is a part of human nature to expect justice

and be intolerant to injustice. Justice enjoins upon

everybody to preserve the basic order of society and

prohibits everyone to disturb it.

The Constitution of India secures justice to all its citizens

apart from securing liberty, equality, and promoting

fraternity. Indian democracy the Supreme Court plays

important role of safeguarding the fundamental rights of

citizens which includes providing fair justice also. Justice

which is the soul of a democratic society must beadministered without fear or favor. Integrity, Impartiality

and Intelligence are some of the important characteristics of

the in dependent judiciary in a democratic setup.


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Supreme Court of India

The existence of an independent and

impartial judiciary is an essential prerequisite of a federal

form of government. It holds the balance between the

central government and the governments of the federating

units. It acts as the custodian of democracy and the guardian

of the rights and liberties of the people.

Provisions in regard to the judiciary in India are contained in

chapters V and VI of the Constitution. Unlike other federal

systems, we do not have separate hierarchies of federal and

state courts. For the entire Republic of India, there is one

unified judicial system- one hierarchy of courts- with theSupreme Court as the highest or the apex court. Then there

are High Courts at the state level and subordinate courts

below them.


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The Supreme Court of India consists of the Chief Justice and

25 other judges, appointed by the president. The Parliament

has the power to prescribe the number of judges and no

formal amendment of the constitution is required for thispurpose.

The Supreme Court of India is the highest court of law, the

entire judicial system of the country is controlled by it.

Article 124 of the Constitution provides for the

establishment and the composition of the Supreme Court.

Article 131 to 140 deeds with the powers of the Supreme

Court.

Jurisdiction and Functions

The Supreme Court of India has three kinds of jurisdiction:

(I)Original Jurisdiction:

Original jurisdiction means thepower to hear and determine a dispute in the first instance.

Its exclusive original jurisdiction deals with disputes (1)

between the Government of India and one or more states,

(2) between the Government of India and any state or states

on the one side and one or more states on the other, or (3)

between two or more states inter see if and in so far as the

dispute involves any question on which the existence or

extent of a legal right depends. However, disputes arising out

of the provisions of treaties with the former Indian states or

to which any such states is parties are excluded from the

original jurisdiction of the Supreme Court.


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(ii) The Appellate Jurisdiction:

The Appellate jurisdiction of the SupremeCourt covers three types of cases: (1) Constitutional, (2)

Civil, and (3) Criminal. In Constitutional matters, an appeal

lies to the Supreme Court from the decision of a High court

whether in civil or criminal proceedings, if the High Court

certifies that the case involves a substantial point of law as

to the interpretation of the Constitution. In Civil cases, an

appeal lies to the Supreme Court from the judgement, decreeor final order of a High Court if the High Court certifies that

the appeal involves a substantial question of law.

In Criminal cases appeal lies to the Supreme Court from the

decision of a High Court if the High Court (a) has an appeal

reversed the order of acquittal of an accused person and

sentenced him to death, (b) has withdrawn for trial before

itself any case from any court subordinate to its authorityand has in such trial convicted the accused person and

sentenced him to death, or (c) certifies that the case is fit for

an appeal to the Supreme Court. The Supreme Court can

itself give special leave to appeal from the judgement of any

court or tribunal in the territory of India. Parliament can, by

law extend the appellate jurisdiction of the Supreme Court.

(iii) The Advisory Jurisdiction:

The Constitution has- also given

the Supreme Court certain Advisory functions. The President

under Art 143 of the Constitution can refer to it any question


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of law or fact which is considerable public importance for its

opinion. Under this jurisdiction even those disputes which

involve an interpretation of the treaties and agreements of

the former Indian states can be referred to the SupremeCourt for its opinion. It, is obligatory on the part of the

Supreme Court to give its opinion an all such questions

referred to it by the President. The judgments and opinions

of the Supreme Court must be declared in open court. The

advice given by the Supreme Court, however is not binding

upon the President.

Composition:

The Supreme Court located in New Delhi consists of eight

judges including the Chief Justice at the time of the

commencement of constitution. Bat in 1956 this number was

raised to eleven and then fourteen in 1960. In 1977 the

maximum number of judges of Supreme Court . was

increased to eighteen including the Chief Justice. SATpresent it has one Chief Justice and not more than 24 other

judges.

Appointment:

The Chief Justice of India is appointed by the President of

India. For appointment as a judge of the Supreme Court a

person must be a citizen of India and must have been at leastfor five years as judge of a High Court or of two or more such

courts in succession for at least ten years or he must be in

the opinion of the President is a distinguished jurist.

Provision has also been made for the appointment of a judge


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of a High Court as ad hoc judge of the Supreme Court and

retired judges of the Supreme Court or of High Court to sit

and act as judge of the Supreme Court. The Constitution

debars a retired judge of Supreme Court from practicing inany court of law or before any other authority in India.

Tenure:

The Chief Justice and other judges of the Supreme Court hold

the office upto the age of 65 years. A judge may resign in

between his tenure by submitting his resignation in writing

to President. In case of discrepancies about the age of judge,the decision of the President is considered final.

Removal:

The judges of the Supreme Court can be removed from office

by the President only after an address by each house of

Parliament supported by more than two thirds majority of

members present and voting has been presented to thePresident in the same session for removal of the judges on

the ground of proved misbehavior or incapacity.

Oath:

Every person appointed as a judge of the Supreme Court

before he enters upon his office, takes an oath before the

President or some person appointed in that behalf by him inthe form prescribed in the Constitution. The Constitution

prohibits a person who has hold office as a judge of the

Supreme Court from practicing law before any court in the

territory of India (Art 124 (6) and (7)).


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The High Courts of India

The High Court of a State is the highest

court of the State and all other courts of the State workunder it. Normally there is one High Court in every State but

there can be only one High Court for two or more States as

well, according to the constitution. There is one High Court

at Chandigarh for Punjab, Haryana and Union Territory of

Chandigarh. Similarly there is one High Court at Guwahati

which serves Assam, Meghalaya, Manipur, Tripura and

Nagaland.

Jurisdictions

The following are the jurisdictions and powers which the

High Courts enjoy all over the country.

1. Original jurisdiction:

The Constitution of India does not give a detailed descriptionof the original jurisdiction of the High Court. It is accepted

that the original jurisdiction of a High Court is exercised by

issue of Writs to any person or authority including

Government.

Article 226 of the Constitution vests in the High Court the

power to issue writs for the restoration of fundamentalrights. It reads, Notwithstanding anything in Article 32,

every High Court shall have power, throughout the

territories in relation to which it exercises jurisdiction, to

issue to any person or authority, including in appropriate

cases any Government, within those territories directions,


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orders or writs including writs in the nature of habeas

corpus, mandamus, prohibition, quo warranto and certiorari,

or any of them for the enforcement of any of the rights

conferred by part III and for any other purpose.

This power of the High Court does not derogate the similar

power conferred on the Supreme Court in Article 32 of the

Constitution.

The original jurisdiction of the High Courts also extends to

the matters of admiralty, probate, matrimonial and

contempt of Court cases. The High Courts have also fullpowers to make rules to regulate their business in relation

to the administration of justice. It can punish for its own

contempt.

2. Appellate Jurisdiction

The appellate jurisdiction of High Court extends to both civil

and criminal cases. In civil cases, its jurisdiction extends tocases tried by Courts of Munsifs and District judges. In the

criminal cases it extends to cases decided by Sessions and

Additional Sessions Judges.

Thus, the jurisdiction of the High Court extends to all cases

under the State or federal laws.

Its jurisdiction can be enlarged by the Parliament and theState Legislature. The Parliament exercises exclusive power

to make laws touching the jurisdiction and power of all

Courts with respect to the subjects on which it is competent


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to legislate. It can also legislate on subjects enumerated in

the Concurrent List.

Likewise a State Legislature has power to make laws

touching the jurisdictions and powers of all Courts within

the Stare with respect to all subjects enumerated in the State

List and the Concurrent List. But as regards the subjects in

the Concurrent List the Union law prevails in case of conflict.

Powers

Power of Superintendence:A High Court has also the power of superintendence over all

Courts and Tribunals except those dealing with the armed

forces functioning in the State. In exercise of this power it

may:-

(i) Call for return from such Courts.

(ii) May issue general rules and prescribe forms for

regulating the practice and proceedings of such Courts, and

(iii) Prescribe forms in which books and accounts are being

kept by the Officers of any Court.

This power has made the High Court responsible for the

entire administration of Justice in the State. It is both judicial

as well as administrative in nature. The Constitution does

not place any restriction on its power of superintendence

over the subordinate Courts. It may be noted the Supreme

Court has no similar power vis-a-vis the High Court.


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Power of Transfer of Cases to High Court:

If the High Court is satisfied that a case pending in a Court

subordinate to it involves a substantial question of law as to

the interpretation of the Constitution the determination of

which is necessary for the disposal of the case, it shall

withdraw the case and may :-

(a) Either dispose of it. Or

(b) Determine the said question of law and return the case to

theCourt from whom it had been withdrawn together with a

copy of its judgment on such question and the said Court

shall on receipt thereof proceed to dispose of the case in

conformity with such judgment.

By vesting these powers in the High Court the framers of our

Constitution have safeguarded the possible multiplicity ofconstitutional interpretation at the level of subordinate

Court.

The High Court has also got ample powers to call for the

records of any case from any subordinate Court to satisfy

itself about the correctness and legality of the orders passed

by the subordinate Courts.

The High Court may either be moved by any interested party

to exercise its power of revision. Even without being so

moved, it can suo moto call for records and pass necessary

order.


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Control over its Officers and Employees:

The High Court has complete control over its officers andemployees. Appointments of officers and servants are to be

made by the Chief Justice or such other Judge or Officer of

the High Court as the Chief Justice may direct.

However, the Governor of the State may by rule require that

in such cases as may be specified in the rule no person not

already attached to the Court shall be appointed to any officeconnected with the Court except after consultation with the

State Public Service Commission.

Subject to any of the Act of the State Legislature, the

conditions of service of those officers and servants of the

High Court are to be such as may be prescribed by rules

made by the Chief Justice of the High Court or by some other

Judge or Officer of the High Court authorised by the ChiefJustice to be make such rules.

The power of appointment also includes powers to suspend

or dismiss. The administrative expenses of the High Court,

including all salaries, allowances and pensions payable to its

officers, are charged upon the Consolidated Fund of the State

Finally, a High Court is also a Court of Record. Its decisionwill be binding on its subordinate Courts. Its proceedings

and decisions have evidential value and they cannot be

questioned by the subordinate Courts. Further, it can punish

for contempt of itself.


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Some High Courts exercise jurisdiction over the Union

territories. To make the exercise of this jurisdiction effective,

the restrictions are imposed on the power of the State

Legislatures to make law with respect to that jurisdiction.When a High Court exercises jurisdiction in relation to a

Union territory, the Legislature of that State has no power to

increase, restrict or abolish that jurisdiction of the High

Court.

Power of Judicial Review:

The States High Courts like the Supreme Court has thepower of Judicial Review. A High Court has the power to

strike down any law of the State or any order of the

executive if it violates any provision of the constitution or

curtails or takes any of the Fundamental Rights of the

people.

Administrative and Supervisory Power:

The State High Court performs many administrative

functions within its Territorial Jurisdiction. It exercises the

power of superintendence and control over all courts and

tribunals throughout the territory except the military

tribunals.


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Qualifications for the Judges

(a) He should be a citizen of India.

(b) He should have been an advocate in one or more HighCourts in India or a judge for at least 10 years in subordinate

courts in India.

Tenure: Originally the age of the retirement of the judges of

the High Courts was fixed at 60 but it was raised to 62 in

1963 according to the 15th amendment of the Constitution.

Removal of the Judges: A judge may leave his office byresigning. He will send his letter of resignation to the

President. His office would be considered to have been

vacated if he is appointed as a judge of the Supreme Court or

is transferred to some other High Court. A judge of a High

Court may also be removed like a judge of the Supreme

Court. A judge of High Court may be removed by the

President if the Parliament passes a motion against him byan absolute majority and 2/3rd majority of the members

present and voting, both the Houses sitting separately.

Terms of Office

A Judge of a High Court holds office until ha attains the age of

62 years. Originally the Constitution had fixed the age

requirement of a High Court Judge at 60. But the FifteenthConstitutional Amendment Act, 1963 raised it from 60 to 62

years. It became necessary as competent persons were

reluctant to serve as judges because of early retirement.


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However, a judge may resign his office earlier by writing to

the President. He may be removed from his office by the

President when a resolution to that effect is passed by the

Parliament and presented to the President. Such a resolutionmust be supported by a majority of the total membership of

each House and not less than two-thirds of the total

members of each House present and voting in that session.

This procedure is similar to the procedure through which a

judge of the Supreme Court is removed. Thus the service

conditions of the High Court judges are identical with those

of the Supreme Court judges.

A judge of a High Court may be transferred to another High

Court by the President after consultation with the Chief

Justice of India. It is provided in order to enable the

President to send a competent and most suited judge to a

particular part of India where his services are needed in the

national interest. Further, it facilitates better justice andkeeps the Court above narrow and regional considerations.

A Judge of the High Court is prohibited from practice in

Courts or before any authority in India, except the Supreme

Court and High Courts of which he has not been a judge.

Thus in appointment, security, salary, pensions and other

privileges, the judges of the High Court are equipped withsame safeguards as the judges of the Supreme Court. This

greatly ensures their impartiality and independence.


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The Subordinate Courts of India

District Court is the principal court of civil

jurisdiction. District Courts of India are established by theState governments in India for every district or for one or

more districts together taking into account the number of

cases, population distribution in the district.

The District Courts of India are under the administrative and

judicial control of the High Court of the State to which the

district concerned belongs. District Courts administer justice

at a district level. The decisions of District court are subjectto the appellate jurisdiction of the High court.

The highest court in each district is the District and Sessions

Court. Each state is divided into judicial districts presided

over by a 'District and Sessions Judge'. A District Judge

presides over a civil case, and a Sessions Judge presides over

a criminal case. He is the highest judicial authority below aHigh Court judge. Below him, there are courts of civil

jurisdiction, known by different names in different states.

The district court is presided over by one District Judge

appointed by the state Government. In addition to the

district judge there may be number of Additional District

Judges and Assistant District Judges depending on the

workload. The Additional District Judge and the courtpresided have equivalent jurisdiction as the District Judge

and his district court. However, the district judge has

supervisory control over Additional and Assistant District

Judges, including decisions on allocation of work among


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Features

Gram Nyayalaya are established generally atheadquarter of everyPanchayat at intermediate level or

a group of contiguous panchayat in a district where

there is no panchayat at intermediate level.[3]

The Gram Nyayalayas are presided over by aNyayadhikari, who will have the same power, enjoy

same salary and benefits of a Judicial Magistrate of First

Class. Such Nyayadhikari are to be appointed by the

State Government in consultation with the respective

High Court

A Gram Nyayalaya have jurisdiction over an areaspecified by a notification by the State Government in

consultation with the respective High Court. The Court

can function as a mobile court at any place within the

jurisdiction of such Gram Nyayalaya, after giving wide

publicity to that regards.

The Gram Nyayalayas have both civil and criminaljurisdiction over the offences and nature of suits

specified in the First, Second and Third schedule of the

Act. The pecuniary jurisdiction of the Nyayalayas are

fixed by the respective High Courts.

The fees charged in civil suits shall not exceed Rs.100irrespective of the value of property in dispute.
http://en.wikipedia.org/wiki/Panchayathttp://en.wikipedia.org/wiki/Gram_Nyayalayas_Act,_2008#cite_note-3http://en.wikipedia.org/wiki/Gram_Nyayalayas_Act,_2008#cite_note-3http://en.wikipedia.org/wiki/Gram_Nyayalayas_Act,_2008#cite_note-3http://en.wikipedia.org/wiki/Gram_Nyayalayas_Act,_2008#cite_note-3http://en.wikipedia.org/wiki/Panchayat


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Sessions Courts

District Court is also referred as Session's Court when it

exercises its jurisdiction on criminal matters under Code of

Criminal Procedure (CrPc). As per section 9 of CrPc, the

Sessions court is established by the State Government for

every sessions division. This court is presided over by a

Judge, appointed by the High Court of that particular state.

The High Court may also appoint Additional Sessions Judges

and Assistant Sessions Judges to exercise jurisdiction in the

Court of Session. An Assistant Sessions judge is a

subordinate to the Sessions Judge. This court hears the casesrelating to murder, theft, dacoit, pick pocketing and other

such cases. Originally, the Sessions Courts heard each case

continuously in sessions and delivered judgments

immediately on completion of arguments. It has the power

to impose any sentence including capital punishment.

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Judiciary systtem of india