UNIT - IV FEDERAL COURT UNDER GOVERNMENT OF INDIA ACT, 1935

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1 trictly for Internal Circulation - KCL UNIT - IV FEDERAL COURT UNDER GOVERNMENT OF INDIA ACT, 1935 Introduction: The Federal Court of India was established under the provisions of the Government of India Act, Accordingly the Act established the Federal form of Government of India. As such it necessitated the establishment of a Federal Court. It was pointed out that the Act was a "measure of bewildering complexity. Its adjustment and its checks and balances are extremely delicate. The Federal Court consisted of a Chief Justice and such puisne judges as the British Crown would deem necessary to appoint. The number of judges who were appointed in this court of the first instance, was seven including the Chief Justice. The Federal Court in a federal form of Government, is the interpreter and guardian of the Federal Constitution, and to serve as tribunal for the settlement of possible disputes between a Province and the Federal Government that may arise under the Act. Constitution of the Federal Court: The Federal Court was to consist of the Chief Justice of India and a number of Judges whose number would not exceed six. They were appointed by his Majesty by warrant under the Royal ign Manual and a Judge so appointed was to hold office till the age of 65 years. But a Judge was allowed to resign earlier at his own free will. A Judge was also liable to removal from his office by his Majesty on the ground of misbehaviour or infirmity of mind or body, if the Judicial Committee of the Privy Council, on a reference made to it in this connection by British Crown reported that the Judge ought to be removed. But in actual practice no Judge was removed from office. The Government of India Act of 1935 provided that a person qualified for the appointment as Judge of the Federal Court must have at least for five years been a Judge of a High Court in British India or in a Federal tate or was a barrister of England or Northern Ireland of at least 10 years' standing or member of the Faculty of Advocates in cotland of at least 10 years' standing, or had been for at least 10 years a pleader of a High Court in British India or of a Federated tate or of two or more such courts in succession. The qualification for the appointment as a Chief Justice was that he must be a barrister, a member of the Faculty of Advocates or a pleader of at least 15 years' standing. ection 201 of the Government of India Act, 1935 provided that the Judges of the Federal Court were entitled to such salaries, allowances and to such rights in respect of leave and pensions, as might from time to time be fixed by his Majesty-in-Council, etc. The Act also provided that in case the office of the Chief Justice became vacant the Governor-General was authorised to appoint another Judge of the Federal Court to act as the Chief Justice thereof. Federal Court was to act as a Court of Record and sat at Delhi. Jurisdiction of the Federal Court: 1. Original Jurisdiction: Federal Court was given exclusive original jurisdiction in any dispute of public interest or some important question of law, or affecting property of considerable amount or where the case is between any two or more of the following parties; the Federation Provinces and tates. It had exclusive original jurisdiction in cases between the Federation and the constituent units. Federal Court had exclusive jurisdiction for the interpretation of Government of India Act, 38

2 trictly for Internal Circulation - KCL 1935, and an Order-in-Council of the Governor-General Council. 2. Appellate Jurisdiction: a) Under ection 205, the Government of India Act, 1935 provided that an appeal shall lie to the Federal Court from any judgment, decree or final order of a High Court in British India. If the High Court certifies that the case involves a substantial question of law as to the interpretation of the Government of India Act of 1935 or any ordinance made there under, it was the duty of every High Court in British India to consider in every case whether or not any such question was involved and of its own motion to give or to withhold a certificate accordingly. b) An appeal would lie to the Federal Court in civil cases after the decision of High Court where the valuation of a civil case was not less than Rs /-. c) In like manner appeals lay from the High Court of a Federal tate. In such cases appeals were to be taken by way of special case to be stated for opinion of the Federal Court by the High Court. The Federal Court was empowered to return the case for further facts in the case. 3. Advisory Jurisdiction: The Governor-General was empowered by the Government of India Act to refer to obtain the opinion of the Federal Court on any question of law having public importance. 4. Miscellaneous power of the Federal Court: The Federal Court after allowing an appeal was to remit the case to the court from which the appeal was preferred and such court was bound to execute Its decision. All authorities, civil and judicial, throughout the Federation, were to act in aid of the Federal Court. It was empowered to make rules of its practice and procedure with the approval of the Governor-General in his discretion. The law declared by the Federal Court was binding on all courts in British India. 5. Appeal to the Privy Council: ection 208 of the Government of India Act, 1935, provided that an appeal could be preferred to the Privy Council from a decision of the Federal Court given in the exercise of its original jurisdiction without leave. In other cases, an appeal could be taken to the Privy Council either with the leave of the Federal Court or with the leave of the Privy Council. THE PRIVY COUNCIL The King has been regarded as the fountain of justice in English legal system and in that capacity he could hear any petition filed by party with respect to any matter. This was called the prerogative power of the King which he exercised with the help of his Council which body came to be known as King-in Councilor more specifically the Privy Council, although the king was not personally present in that body. The subjects of the British colonies were also regarded as the subjects of king and, therefore, the king could exercise his prerogative to hear their cases also. Appeals from India: The appeals from India could be filed as of right or with the special leave of the Privy Council. 1. Appeals as of Right: For the first time in the Charter of 1726 which established the Mayor's Courts a provision was made for a second appeal to the Privy Council against the decisions of the Mayor's Court in those cases where the valuation of the suit was above 1000 pagodas. Then in 1774 after 39

3 trictly for Internal Circulation - KCL the establishment of the upreme Court at Calcutta an appeal could be made to the Privy Council in all cases with the leave of the upreme Court. The King-in Council could refuse such appeals. In Madras and Bombay provision was made for an appeal to the King-in-Council against the decisions of the Recorder's Court and when they were replaced by the upreme Courts then against the decisions of the upreme Courts almost on the same grounds as against the decisions of the upreme Court at Calcutta. However, in case of Bombay an appeal could go to the King-in-Council only in the cases valuing 3000 pagodas or more. In 1781 a provision for appeal from Mofussil area was also made which provided an appeal to the King-in-Council against the decisions of the adar Diwani Adalat in the suits of 5000 or more or of R or more. In 1812 and 1818 provision was made for such appeals from the adar Diwani Adalats of Bombay as was prescribed in case of Madras and in Bombay also the limitation of 5000 or more was done away in Thus an appeal could be made against the decisions of the adar Diwani Adalat of Bombay and Madras even in cases of less amount. In 1862 when the High Courts were established at Calcutta, Bombay and Madras provision was for an appeal to the Privy Council in civil and criminal matters. In civil matters an appeal could be made (1) in cases of the value of Rs or more or (2) in other cases if the High Court gave a certificate to file such appeal. An appeal could be filed even against the interlocutory orders of the High Courts. In criminal cases an appeal could be filed against the decisions passed by the High Courts (1) in their original jurisdiction or (2) in those cases where a point of law had been referred to the High Court by a lower court. imilar provisions were made for appeals from other High Courts. 2. Appeal by pecial Leave: As has been observed earlier, the King-in-Council always reserved a right to allow an appeal by special leave. The right was exercised in case of India also. However, the King-in-Council did not encourage such appeals and the discretion was exercised in very exceptional cases where non-exercise of such discretion was likely to cause some grave injustice to any part. In criminal cases where this jurisdiction was frequently approached by the people, it was exercised on more strict terms. The following lines from Ibrahim v. Rex clearly depict the attitude taken by the Privy Council. Leave to appeal is not granted except where some clear departure from the requirements of justice exists, nor unless by a disregard of the forms of legal process, or by some violation of the principles of natural justice of the otherwise substantial and grave injustice has been done... There must be something which, in the particular case, deprives the accused of the substance of fair trial and the protection of the law, or divert the due and orderly administration of the law into new course, which may be drawn into an evil procedure in future. Working of the Privy Council: In the beginning we have seen very few appeals from India were filed before the Privy Council. There were several reasons for that. The Indian people either did not know the procedure to file an appeal before the Privy Councilor they did not know the nature and working of the Privy Council; or because of financial reasons they could not afford to file such appeal and last, but did not the least, was the delay which the Privy Council made in deciding an appeal. The organisation of the Privy Council also suffered from so many drawbacks. It was not a duly constituted court with law members, neither was there any provision for the regular sittings of the Council, nor was there any procedure properly known to the people and lastly the decisions of the 40

4 trictly for Internal Circulation - KCL Council also lacked uniformity. The early appeals which were filed from India in many cases were not prosecuted by the appellants or even if they tried no relief could easily be given by the Privy Council. Many criticisms were also made of this state of affairs by the Court of Directors of the Company and other distinguished persons and people concerned. However, nothing took place till the criticism and the effort of Lord Brougham, who later became the Lord Chancellor got the Judicial Committee Act passed on August 14, The Act of 1833 constituted a Committee of the Privy Council which consisted of specified members. The quorum of the committee was fixed at four members at a time. Provision was also made for the sitting of two members as assessors, who had held the office of a judge in India or any other dominion. In 1843 the quorum was reduced to three members and in 1876 the provision was made for the appointment of Law Lords to the Judicial committee of the Privy Council. The number of colonical judges was increased from two to five in 1895 and in 1908 the judges from India were allowed to be authorised by His Majesy the King to work as members of the Judicial Committee. After 1915 the Judicial Committee sat in two divisions. One of the divisions with at least five members exclusively heard appeals from India. After re-organisation the Privy Council worked as a regular court. With respect to Indian appeals a uniform limit of Rs was fixed to bring a case for appeal to the Council. ome provisions were also made to dispose of the pending work. On the establishment of the High Courts in 1862 provision was made for appeal in civil' and criminal matters. In civil matter if the value of the suit was R or more or the High Court gave a certificate of fitness then an appeal could be made to the Council. In criminal matters only against the cases decided in the original jurisdiction of the High Court or those in which action point was referred to the High Court by a lower court and it was decided by the' High Courts an Appeal could be made. The same provision applied to High Courts established later. Under the Government of India Act, 1935 a Federal Court was established in 1937 which had original and appellate jurisdiction in constitutional matters only. An appeal could be made against its decisions to the Privy Council in cases decided in its original jurisdiction or with the leave of the Federal Court or of His Majesty even in other cases. The appeals from the High Courts could go as before. In 1948 the Federal Court (Enlargement of jurisdiction) Act empowered the Federal Court to hear appeals in which the Privy Council could hear an appeal and direct appeals to the Privy Council were prohibited. However, it did not touch the appeals in criminal cases and even in other cases an appeal could be made to the Privy Council with special leave of the Federal Court of or His Majesty. The remaining jurisdiction of the Privy Council was abolished on eptember 24, 1949 by an Act of the Constituent Assembly, and thus a two centuries old relation with the Privy Council was broken. On January 26, 1950 the upreme Court of India became the court of last resort under the Constitution of India. PREENT JUDICIAL YTEM Presently India has got the following judicial system for the administration of civil, crimin~1 and revenue ' administration: 1. upreme Court of India is highest in the hierarchy of the judicial institutions. It is established at Delhi. 41

5 trictly for Internal Circulation - KCL 2. High Courts: A High Court is established in each tate of the country. It derives its power and authority from the Constitution of India. 3. Civil Courts: Besides the two courts mentioned above, there are subordinate courts in each district of each tate for the administration of civil and criminal justice etc., which are discussed below: a. District Courts: These courts are just below the High Court of a tate and established in each district. It is the principal civil court of original jurisdiction in each district. It also exercises appellate jurisdiction on the decrees and orders passed by the Munsif and subordinate judges in all cases upto Rs Appeals in cases involving more than Rs lie direct to the High Court. The original pecuniary jurisdiction of the District Court is above Rs b. Courts of ubordinate Judges: Below the district Courts there are the courts of the ubordinate Judges. The courts of the subordinate judges are called by different names in different tates. They are called ubordinate Judges' Courts in Bengal. In U.P. they are named as the Courts of Civil Judges. In the different tates they are named as Civil Judge (enior Division) Civil Judges (Class 1). Every Court 'of the ubordinate Judges has jurisdiction to try civil cases. But the pecuniary limit of these courts in every tate has been fixed by the Civil Courts Acts of every tate passed in different years. c. Courts of Munsiffs, etc.: These Courts are the lowest in hierarchy of the judicial institutions. The Courts of Munsiffs are designated by different names in different tates (in Bengal, U.P. and Madras, they are called Courts of Munsiffs, in Bombay, Civil Judge, Junior Division, Civil Judges of Class I, etc). These courts are empowered to try civil cases, varying between Rs and Rs. 5000, thus differing from tate to tate. d. mall Causes Courts: The court has jurisdiction to try cases of civil nature, but involving not more than Rs in each case. But ection 20 of the Presidency small causes courts Act, 1882, makes an exception to the above rule and provides that the courts can try a suits involving more than Rs. 2000, if the parties to the suit by consent submit the same to its jurisdiction. These courts are under the superintendence of the High Courts concerned. Clause 12 of the Letters Patent of the High Courts in Presidency Towns provides that the High Court has no jurisdiction over suits below Rs But where the value exceeds Rs. 2000, both the High Court and the mall Causes Court take cognizance of such cases. But as a matter of procedure such suits must be instituted in the small causes court and not in the High Court. There exist a few Provincial small causes courts also known, as small causes courts in some states. These courts are authorised to take cognizance of cases involving from Rs. 50, to Rs if the local Government prescribes to that effect. These courts are under the superintendence of the High Court. A number of cases have been excluded from the jurisdiction of these courts. The decisions of these courts are final, but are subject to revision by the High Court. Village Panchyat etc.: The village panchayat courts are to be established by each local government and will derive their authority from the Act thus enacted. The Panchayat courts 42

6 trictly for Internal Circulation - KCL have the following jurisdiction in civil cases: a. uits for money or goods due on contract or price thereof; b. uits for the recovery of movable property or the value of such property, and c. uits for compensation for wrongfully taking or injuring movable property provided the claim does not exceed Rs. 200 or Rs. 500 in some special cases. it may be noted that Parts IX and IXA have been added to the Constitution by the Constitution (73rd Amendment) Act 1992 and Constitution (74th Amendment) Act Through this amendment, constitutional sanctions to democracy at the grass root level to village panchayats have been provided. This amendment has been enshrined in accordance with the directives envisaged in Article 40 of the Constitution to organise village Panchayats and to endow them with such powers and authority as may be necessary to enable them to function as units of self-government. Criminal Courts: The modern criminal courts in the country except the upreme Court and the High Courts are constituted under the provisions of the Code of Criminal Procedure. In the country, the highest Court is the upreme Court. In a tate a High Court is the highest Court, while the Court of the Magistrate is the lowest court. The High Court is subject to the jurisdiction of the upreme Court. The following is the classification of the criminal courts in the Presidency towns: 1. ession Courts. 2. Presidency Magistrates. 3. Magistrates of the First Class. 4. Magistrates of the econd Class. 5. Magistrates of the Third Class. Outside the Presidency Towns, the following courts administer the criminal justice- 1. essions Courts. 2. District Magistrate. 3. Additional District Magistrate. 4. ubordinate Magistrate. 5. pecial Magistrate. 6. Magistrate of the First Class. 7. Magistrate of the econd Class. 8. Magistrate of the Third Class. Power of the Various Criminal Courts: Third Class Magistrates: They are empowered to try various minor offences. The maximum punishment awarded by them is a sentence of one month's imprisonment, simple or rigorous and a fine not exceeding Rs. 50. econd Class Magistrates: They are authorised to award sentence of imprisonment for a term not exceeding six months with fine upto Rs. 200 only. 43

7 trictly for Internal Circulation - KCL First Class Magistrates: They are authorised to punish offenders by imprisonment for two years and a fine not exceeding Rs District Magistrates and Additional District Magistrates: These have appellate powers. They hear appeals of persons convicted by the econd or Third Class Magistrates. All Magistrates in the District are subordinate to the District Magistrate. District Magistrates and Additional District Magistrates are the Magistrate of the First Class. Presidency Magistrates, Additional Presidency Magistrates and Chief Presidency Magistrates: These three courts administer criminal justice in each Presidency town. Presidency Magistrates are empowered to pass the same sentence as the Magistrate of the First Class. Appeals from their decision lie to the High Court if the sentence awarded is for imprisonment for a term exceeding six months or fine exceeding Rs essions Courts: Every district has a essions Court. These courts are authorised to try more serious offences, e.g., dacoities, all types of homicide, thefts by habitual offenders, etc. A sessions Judge may pass any sentence authorised by law, but any sentence of death passed by him is subject to confirmation by the High Court. The essions Judge is empowered to hear appeals from the decisions of the District Magistrate. Justice of the Peace: Besides the above criminal courts, the local Government of every tate is authorised to appoint such persons resident within India and not foreigners, as it deems fit to be Justice of the Peace within and for the local area specified in the notification. ubordinate Courts under the Constitution of India: Article 233 provides that appointments of persons to be and the posting and promotion of District Judges in any tate shall be made by the Governor of the tate in consultation with the High Court exercising jurisdiction in relation to such tate. Article 234 of the Constitution provides that appointment of persons other than the District Judges to the Judicial service shall be made by the Governor in accordance with rules made by him after consultation with the tate Public ervice Commission and with the High Court of that tate. Article 235 provides that the control over district and court subordinate thereto including the promotion of, and the grant of leave to, persons belonging to the judicial service of a tate and holding any post inferior to that of the District Judge shall be vested in High Court. Article 237 provides that Governor may by public notification direct that the foregoing provisions of Chapter V of Part VI and any rules made there under shall with effect from such date as may be fixed by him in that behalf apply in relation to any class or classes of Magistrates in the tate as they apply in relation to person appointed to the judicial service by of the tate subject to exception and modification as may be specified in the notification. IMPORTANT QUETION Q.1. Q.2. Q.3. Write a note on the Federal Court of India. Trace the history of Original and Appellate Jurisdiction of the Privy Council. Write an essay on the Present Judicial ystem. 44