The Judiciary PDF

# The Judiciary ## Scope - The Supreme Court and The High Court - Composition, Qualifications, Appointment, Jurisdiction and Functions - Writs-Examples ## Government of India The Government of India has three different independent branches namely the Executive, the Legislative, and the Judic...

# The Judiciary ## Scope - The Supreme Court and The High Court - Composition, Qualifications, Appointment, Jurisdiction and Functions - Writs-Examples ## Government of India The Government of India has three different independent branches namely the Executive, the Legislative, and the Judiciary. The Indian judicial system was formed by the British during their colonial rule in the country. This system is known as the Common Law System in which the judges develop the laws with their judgments, orders, and decisions. The different types of courts form the different levels of judiciary in the country. The apex court of India is the Supreme Court, located in New Delhi, followed by the High Courts in different states. The High Courts are followed by the district courts and subordinate courts which are also known as the lower courts. The Supreme Court is the highest court of appeal in India. ## Supreme Court ### Types of Courts in India There are three types of courts in India: - The Supreme Court - The High Court - The District Court **Diagram:** The hierarchy of the Indian Judiciary is shown by this diagram: - The Supreme Court is at the top - The High Court is below the Supreme Court - The District Court is at the bottom ### Composition It consists of the Chief Justice and not more than 25 judges. The President may appoint an ad-hoc judge at the request of the Chief Justice. ### Appointment Every judge of the Supreme Court is appointed by the President of India after consultation with such judges of the Supreme Court and the High Courts of States as the President may deem necessary for the purpose. However, in the matter of appointment of a judge other than the Chief Justice, consultation of the Chief Justice of India by the President is obligatory. ### Qualifications To be a judge of the Supreme Court, one must: 1. be a citizen of India 2. have been a judge of a High Court at least for five years; or 3. have been an advocate of a High Court for at least ten years 4. be a distinguished jurist in the opinion of the President. ### Tenure A judge of the Supreme Court retires at the age of 65 years. He may also resign from his office. ### Removal A judge of the Supreme Court can also be removed by the President from his/her position only on the ground of "proved misbehaviour" or "incapacity". ### Powers and Functions The jurisdiction of the Supreme Court may be categorized as original, appellate, and advisory. 1. **Original Jurisdiction:** Under this jurisdiction, the Supreme Court can settle disputes: - between the Centre and one or more States - between the Centre and any State or States on the one side and one or more other States on the other; or - between two or more States. 2. **Appellate Jurisdiction:** Under this jurisdiction, the Supreme Court can hear appeals on the following cases: - **Constitutional Cases:** An appeal can be made to the Supreme Court in cases which relate to the interpretation of the Constitution. - **Civil Cases:** In a civil case also, an appeal can be made to the Supreme Court against a decision of a High Court. In these cases, the High Court must certify that the case involves a substantial question of law as to the interpretation of the Constitution. - **Criminal Cases:** An appeal can be made in the Supreme Court against any judgement, final order, or sentence given by a High Court in criminal matters. 3. **Advisory Jurisdiction:** The Supreme Court has some advisory powers also. The President of India can seek the opinion of the Court if there is a question of law or fact where the interpretation of the Constitution is involved. The Supreme Court may give its opinion on the President's question but it is not binding on any party. 4. **Court of Record:** The Supreme Court also acts as the Court of Record. The judgements of the Supreme Court are recorded and considered as authoritative and serve as cases, laws, and proceedings. These records have great evidentiary value. 5. **Directions, orders, or writs:** The Supreme Court is regarded as the protector of the Fundamental Rights of the citizens. For this purpose, it has been given the power of issuing certain writs like: - habeas corpus - mandamus - prohibition - quo warranto - certiorari. - The Supreme Court can also issue orders and directions. 6. **Contempt of Court:** The Supreme Court can punish anyone who is found to be indulged in contempt of the court. Contempt of court includes criticism of a judgement of the court, criticism of judges, and the court passing derogatory remarks against the court, refusing to abide by the decisions of the court, etc. 7. **Review of judgment and order:** The Supreme Court is empowered to review any Judgement given by it earlier. It can do this if: - some new facts or evidences appear: - a fault is found according to its own record; and - there are sufficient reasons for review. 8. **Guardian of the Constitution:** The Supreme Court of India is regarded as the guardian of the Constitution. It is the supreme or final interpreter of the Constitution. The interpretation of the Constitution given by the Supreme Court is to be respected. 9. **Judicial Review:** The Supreme Court has been given the power to decide whether a law passed by the Parliament or the State legislatures and the executive decisions taken by the Central or State government are constitutional or not. If such a law or executive decision is found unconstitutional, then it can declare it as invalid. 10. **Public Interest Litigation:** Even if the victim or affected parties do not file cases, anyone from the general public, not involved in the case, may file litigation (law suit), if it is in the general public interest. It is the privilege of the Court to entertain or not to entertain the application for Public Interest Litigation. ## The High Court The Constitution provides for a High Court in every State which works under the Supreme Court of India. But in some cases, one High Court serves more than one State. For example, the Guwahati High Court serves not only Assam but also the other States of the North-Eastern region. ### Composition The High Court consists of a Chief Justice and other judges. There is no fixed number regarding the judges of the High Courts. The President may also appoint a qualified person as an additional judge in a High Court for two years. ### Appointment The judges of the High Court are appointed by the President of India. The President appoints the Chief Justice of a High Court after consulting the Chief Justice of India and the Governor of the State. ### Qualifications To be a judge of a High Court one must: 1. be a citizen of India 2. have held, for at least ten years, an office in the territory of India or 3. have been, for at least, ten years a judge of a High Court ### Tenure A judge of a High Court retires at the age of 65 years. He may also resign from his office at any time. ### Removal The President may remove a judge of a High Court on the ground of "proved misbehaviour" or "incapacity." ### Powers and Functions of High Court The powers and functions of High Courts have not been described in detail in the constitution. Before the present constitution was adopted, the High Courts with well defined powers, were functioning in different states. Thus, the framers of the constitution did not feel the need of describing in detail the jurisdiction of High Courts. On the other hand, the Supreme Court, being a new creation, required a clear definition of its powers and jurisdiction. The powers and functions of High Courts may be discussed under the following five heads: 1. **Original Jurisdiction:** In some matters, cases can be directly filed in the High Courts. This is called the original jurisdiction of the High Court. 2. **Appellate Jurisdiction:** The High Court has appellate jurisdiction over both civil and criminal cases. It can hear appeals on civil cases tried by the Courts of Munsifs and District Judges. In criminal cases, the jurisdiction extends to cases tried by the Sessions and Additional Sessions Judges. An appeal can be filed against the decision of a Sessions Judge if the accused has been sentenced for 7 years or more. Capital punishment given by a Sessions judge cannot be executed unless it is confirmed by the High Court. - Civil cases refer to property, marriage, adoption, etc. while criminal cases cover crimes like murder, bribery, injury, etc. 3. **Supervisory Jurisdiction:** The High Court, under Article 227, has the power of superintendence over all the Courts and Tribunals except those which deal with Armed Forces located in the state. The High Court has the power to: - call for return from such courts - make and issue general rules and prescribe forms for regulating the practice and proceeding of such courts and - issue prescribe forms in which books, entries and accounts are to be kept by the officers of such courts 4. **Administrative Jurisdiction:** The officers and servants (employees) of the High Court are under its total control. They are appointed by the Chief Justice or any other Judge or officer of the High Court, as he may direct (Article 229). However, the High Court may be required by the Governor of the state to consult the Public Service Commission while appointing the officers and staff of the High Court. The Chief Justice has the power to suspend or dismiss any of the officers or servants of the High Court. He or any other Judge of the High Court, authorized by him, shall determine the service conditions of its officers and staff subject to any act of the state legislature. The administrative expenses of the High Court are charged upon the Consolidated Fund of the State. These are non-votable. 5. **Power to Transfer cases from Subordinate Courts:** If the High Court is satisfied that a case pending in a Subordinate Court involves a substantial question of law as to the interpretation of the constitution, it may withdraw the case to itself and do either of the following two: - It will dispose of the case; or - It will determine the question of law and return the case to the concerned court along with its judgement and direct that court to dispose of the case in conformity with this judgement. - The exercise of this power by this High Court serves a good purpose. It prevents multiple and conflicting interpretations of the constitution by Subordinate Courts. 6. **A Court of Record:** The High Court is a Court of Record. Its decisions are binding for all Subordinate Courts. The decisions and proceedings of the High Court have evidentiary value, and no Subordinate Court can challenge them. 7. **Miscellaneous Powers:** - The High Court has the power to send for the judgment of lower court. By exercising this power, the High Court can examine the legal validity of this judgement. - The High Court can punish any person or institution for contempt of court ### Subordinate Court All the subordinate Courts function under the supervision of the concerned High Court. - The court of the District Judge is the highest court in a District. The judge is called the District Judge while dealing with civil cases and Sessions Judge while dealing with criminal cases. - Besides these courts, there are Courts of Assistant Judges, Sub-Judges, Munsifs, and Courts of small causes. ### Panchayat Court The Gram Nyayalayas or Village Courts are established under the Gram Nyayalayas Act, 2008 for every Panchayat at intermediate level or a group of contiguous Panchayats at intermediate level in a district or where there is no Panchayat at intermediate level, in any State, for a group of contiguous Panchayats. - The seat of the Gram Nyayalaya will be located at the headquarters of the intermediate Panchayat. - They will go to villages, work there and dispose of the cases - The Gram Nyayalayas are aimed at providing inexpensive justice to people in rural areas at their doorsteps. - The Gram Nyayalayas are courts of Judicial Magistrate of the First Class and shall exercise the powers of both Criminal and Civil Courts with certain modifications as provided in the Act. ### Lok Adalats Lok Adalats (people's courts) settle disputes through conciliation and compromise. - The First Lok Adalat was held in Gujarat in 1982 - Lok Adalat accepts the cases pending in the regular courts within their jurisdiction which could be settled by conciliation and compromise. - The Lok Adalat is presided over by a sitting or retired judicial officer as the chairman, with two other members, usually a lawyer and a social worker. - Main condition of the Lok Adalat is that both parties in dispute should agree for settlement - There is no court fee. If the case is already filed in the regular court, the fee paid will be refunded if the dispute is settled at the Lok Adalat. - The procedural laws and the Evidence Act are not strictly followed while assessing the merits of the claim by the Lok Adalat. - The decision of the Lok Adalat is binding on the parties to the dispute and its order is capable of execution through legal process. - No appeal lies against the order of the Lok Adalat. Lok Adalat is very effective in settlement of money claims. - Disputes like partition suits, damages and matrimonial cases, can also be easily settled before Lok Adalat as the scope for compromise through an approach of give and take is high in these cases.