[Polity] Courts System of India

Transcription

1 [Polity] Courts System of India /2015/06/courts-system-of-india.html Courts of India comprise the Supreme Court of India, High Courts, District Court, Sessions Courts and several other courts. The Indian law system is discussed in details in Part V, Chapter IV of the Indian Constitution. The Supreme Court of India is the highest authority of justice in the country while there are numerable Nyaya Panchayats at the bottom. Supreme Court of India Supreme Court came into being on January 28, The inauguration took place in the Chamber of Princes in the Parliament building. The Chamber of Princes had earlier been the seat of the Federal Court of India for 12 years, between 1937 and 1950, and was the seat of the Supreme Court until the Supreme Court acquired its present premises in After its inauguration on January 28, 1950, the Supreme Court started its sittings in the Chamber of Princes in the Parliament House. Composition of the Supreme Court of India The original Constitution of India in 1950 supplied the Supreme Court with a Chief Justice and 7 lowerranking Judges leaving it to Parliament to increase this number. In the past, a full bench of the Supreme Court sat together to hear the cases presented before them. As the work of the Court increased and cases began to compile, Parliament increased the number of Judges from 8 in 1950 to 11 in 1956, 14 in 1960, 18 in 1978 and 26 in As the number of the Judges has increased, they sit in smaller Benches of two and three coming together in larger Benches of 5 and more only when required to do so or to settle a difference of opinion or controversy. Any bench may refer the case up to a larger bench if the need arises. The Supreme Court of India comprises the Chief Justice of India and not more than 25 other Judges appointed by the President of India. However, the President must appoint judges in consultation with the Supreme Court and appointments are made on the basis of experience and seniority and not on political pressure. A Supreme Court Judge retires after attaining the age of 65 years. In order to be appointed as a Judge of the Supreme Court, a person must be a citizen of India and must have been, for at least five years, been a Judge of High Court or of two or more such Courts incontinuation, or he must be an Advocate of a High Court or of two or more such Courts in succession for at least 10 years, or the person must be, in the opinion of the President, a Renowned Legal Expert. The Supreme Court has always maintained a wide regional representation. It also has had a good number of Judges belonging to different religious and ethnic minorities. The first woman to be appointed to the Supreme Court was Justice Fatima Beevi in She was later succeded by Justices Sujata Manohar and Ruma Pal. The first Dalit to become a judge was Justice K.G. Balakrishnan in He also became the Chief Justice of India in Justice B.P.Jeevan Reddy was so intellectual that he was appointed as the Chairman of the Law Commission of India even though he was not the chief justice of India. Jurisdiction of the Supreme Court of India 1/5

2 Original Jurisdiction: It has exclusive original jurisdiction over any conflict between the Government of India and one or more States or between the Government of India and any State or States on one side and one or more States on the other or between two or more States, if and insofar as the dispute involves any question on which the existence or extent of a legal right depends. In addition, Article 32 of the Constitution grants an extensive original jurisdiction to the Supreme Court in regard to enforcement of Fundamental Rights. Appellate (appeal) Jurisdiction: The appellate jurisdiction of the Supreme Court can be raised by a certificate granted by the High Court concerned under Articles 132(1), 133(1) or 134 of the Constitution in respect of any judgement, enactment or final order of a High Court in both civil and criminal cases, involving substantial questions of law as to the interpretation of the Constitution. The Supreme Court can also grant special leave to appeal from a judgement or order of any nonmilitary Indian court. Parliament has the power to enlarge the appeal jurisdiction of the Supreme Court and has exercised this power in case of criminal appeals by enacting the Supreme Court Act, of Appeals also lie to the Supreme Court in civil matters if the High Court certifies: That the case involves essential question of law of general importance, and That, in the opinion of the high court, the said question needs to be decided by the supreme court. In criminal cases, an appeal lies to the supreme court if the high court: Has on appeal reversed an order of acquittal of an accused person and sentenced him to death or to imprisonment for life or for a period of not less than 10 years, or Has withdrawn for trial before itself any case from any Court subordinate to its authority and has in such trial convicted the accused and sentenced him to death or to imprisonment for life or for a period of not less than 10 years, or Certified that the case is a fit one for appeal to the Supreme Court. Parliament is authorised to confer on the Supreme Court any further powers to entertain and hear appeals from any judgement, final order or sentence in a criminal proceeding of a High Court. Advisory Jurisdiction: The Supreme Court has special advisory jurisdiction in matters which may specifically be referred to the President of India under Article 143 of the Constitution. Judicial independence of the Supreme Court of India The Constitution ensures the independence of Supreme Court Judges in various way. A Judge of the Supreme Court cannot be removed from office except by an order of the President passed after an address in each House of Parliament supported by a majority of the total membership of the House and by a majority of not less than two-thirds of members present and voting, and presented to the President in the same Session for such removal on the ground of proved misbehaviour or incapacity. A person who has been a Judge of the Supreme Court is prevented from practising in any court of law or before any other authorization in India. Powers of the Supreme Court of India to Punish Contempt Under Articles 129 and 142 of the Constitution the Supreme Court has been given the power to punish anyone 2/5

3 for contempt of any law court in India including itself. The Supreme Court took an exceptional decision by giving the sitting Minister of the state of Maharashtra to be prisoned for a month on the charge of contempt of court on May 12, This was the first time that a serving Minister was ever put behind bars. High Courts in India High Courts of India are at the top of the hierarchy in each State but are below the Supreme Court. These courts have control over a state, a union territory or a group of states and union territories. Below the High Courts are secondary courts such as the civil courts, family courts, criminal courts and various other district courts. High Courts are established under Part VI, Chapter V. The High Courts are the principal courts of original jurisdiction in the state, and can try all offences including those punishable with death. We see that, article 214 of the Constitution of India states that there shall be a High Court for each of the states. In addition to that, Article 231 of the Constitution empowers the Parliament to set up one High Court for two or more states. For example, Gauhati High Court has jurisdiction over the State of Tripura and some other states of North- East India besides its jurisdiction over the State of Assam. However, works of most High Courts consists of Appeals from lowers courts and summons, petitions in terms of Article 226 of the Constitution of India. The precise jurisdiction of each High Court varies from each other. A High Court is composed of a Chief Justice and as many other judges as the President of India may from time to time deem it necessary to appoint. The President can appoint additional judges also for a maximum period of two years. The number of judges in a Court is decided by the dividing the average institution of main cases during the last five years by the national average. The average rate of disposal of main cases per judge per year in that High Court is also taken into consideration. Ordinarily, the judges remain in office till the age of 62. In appointing the chief Justice of High Court, the President consults the governor and the Chief Justice of the Supreme Court. In appointing other Judges the President consults the Chief Justice of the Supreme Court and the Chief Justice of the High Courts of India. Though the judges of the High Courts of India can remain in office till the age of sixty two, the judges may resign from their posts prematurely by applying in writing to the President. Besides, the judges of a High Court can be removed from office on various grounds like misdemeanour and corruption. The judges of the High Court may be transferred to another High Court of another state or Supreme Court. The judges of the High Court must be an Indian citizen and must have ten years of experience in adjudication or in legal practice. To ensure independence of judiciary, a special mode of removal of the judge has been prescribed in the Constitution of India. The proposal of removal of the judges must be passed by a two thirds majority of the members present in the Legislature. The proposal then shall have to be sent to the President for his assent. The President will then ask the judge to resign. The High Courts of India act as the Court of Original Jurisdiction and the Court of Appellate Jurisdiction at the same time. As a Court of original Jurisdiction the High Court can try original cases. The Constitution has vested the High Court with Power of trying revenue cases also. The High Court in every state is the highest court of appeal in respect t of any criminal or civil cases of the State. The High Court may either give its verdict on constitutional point only and leave it to the lower court concerned to pass verdict on the other issues or try the cases as a whole. The Union Parliament has been empowered to either enlarge or restrict the jurisdiction of the High Court. The High Courts of India have the power of superintendence over all the lower Courts of a State except the Military Tribunals. The High Court can also issue various writs in order to safeguard the fundamental rights of the citizens of India. The writs are in the nature of Habeas Corpus, Mandamus, Prohibition, Quo Warranto and Certiorari. Apart from all these, the High Court has the authority of making laws regarding the appointment of its own officials and other internal affairs. As the head of the judiciary in the state, the High Court has got administrative control over the subordinate in the state. The High Court is a Court of Record. This means that all records that regarding all cases that come to the High Court are kept with the extreme care possible and these records are later referred to in dealing with other cases. The 42nd 3/5

4 Amendment Act of 1976 curtailed the jurisdiction of the High Courts in various spheres. However, the 44th Amendment Act of 1979 restored the original jurisdiction and position of the High Courts. Subordinate Courts A Constitution, being the basic law, does not usually go into such details as the provisions dealing with the organisation and working of subordinate courts. Such subjects are left to be dealt with by the Legislature. The Constitution of India departs from this practice by incorporating detailed provisions concerning even the subordinate judiciary. This is mainly due to certain peculiar conditions which existed in India at the time of the making of the Constitution. During the British rule, in order to suit the convenience of the foreign government, executive and judicial functions were combined in the same officer at the lower levels of the administration. Under the British, each province was divided into a number of districts which became the pivotal units of administration. Each of these districts was headed by an officer called the Collector Magistrate who combined in his office both the executive and judicial functions. As an instrument of the alien, imperial government, this officer behaved, more often than not, as a local dictator. What really made him a dictator was the combination of both the executive and judicial powers in his office. The evils of this system were so far-reaching that it became an instrument of terror during the National movement for political liberation. There was almost universal condemnation of the system and the demand for the complete separation of the judiciary from the executive was persistent and vociferous. This accounts for the Constitution-makers dealing with this problem in detail. As we have seen earlier, one of the Directive Principles is the separation of the judiciary from the executive. They were not satisfied with this alone. They wanted also to see that the judiciary at the lower levels was made completely independent of the executive; they sought to establish a judicial system under which from the highest court in the land to the lowest, every layer and each unit in every layer functioned in a spirit of judicial independence. The special significance of the powers of superintendence which the High Court exercises over the subordinate judiciary is to be understood in this context. The constitutional provisions dealing with the subordinate courts, therefore, are intended to secure a twofold objective. First, to provide for the appointment of District and Subordinate Judges and their qualifications. Secondly, to place the whole of the civil judiciary under the control of the High Court. The importance of these provisions can hardly be exaggerated in the context of the Indian situation. It is the subordinate judiciary that comes into most intimate contact with the ordinary people in the judicial field. Therefore, it is particularly necessary that its independence is placed beyond question in order to infuse public confidence in it. This is the justification for incorporating these provisions in the Constitution. The Constitution draws a distinction between two categories of Subordinate Courts, namely, the District Courts and others. Judges of the District Courts are appointed by the Governor in consultation with the High Court. Further, a person to be eligible for appointment as a District Judge should be either an advocate or a pleader of seven years standing, or an officer in the service of the Union or of the State. In the case of every advocate or pleader, the appointment should be on a recommendation by the High Court. 4/5

5 Appointment of persons other than District Judges to the judicial service of a State is made by the Governor in accordance with rules made by him in that behalf after consultation with the High Court and the State Public Service Commission. The practice that exists in most States at present is that the Public Service Commission conducts competitive examinations for the selection of candidates for appointment in the State Judicial Service. The Commission lays down certain minimum educational and professional qualifications for candidates who intend to compete in these examinations. At least three years of experience as an advocate or a pleader is one of the principal qualifications. The selected candidates are given special training for a certain period before regular appointment to the service, and thereafter they come under the superintendence of the High Court in the discharge of their responsibilities. Article 235 specifies the nature and extent of the High Court's control over the subordinate judiciary. According to that Article, the High Court exercises control over the District Courts and the Courts subordinate to them, in matters such as posting, promotions and the granting of leave to all persons belonging to the State Judicial Service. The Governor is empowered to extend the scope of these provisions in order to include also different classes of magistrates in the State who do not belong to the regular judicial service. Except for minor local variations, the structure and functions of the subordinate courts are uniform throughout the country. Each State, for the purpose of judicial administration is divided into a number of districts, each under the jurisdiction of a District Judge. Under him is a hierarchy of judicial officers exercising varying types of jurisdiction. As a result of the progressive implementation of the principle of separation of the judiciary from the executive, the subordinate judiciary in most parts of the country is already functioning separately. The constitutional safeguards are bound to provide for its firm establishment as a truly independent institution as the framers intended it to be. 5/5