First-Year Law Notes & Flashcards

Judiciary –Importance and its need

Judiciary – It’s Importance: An endeavor is being made to highlights the judicial functioning in India, in the context of increasing cases of judicial corruptions and delays in administration of justice. The Indian judiciary has so far, gained the public confidence in discharging its constitutional functions. As an institution, the judiciary has always commanded considerable respect from the people of country. The roots of this high regard lie in the impartiality, independence and integrity of the members of the judiciary. The judiciary in a democratic polity governed by the rule of law stands as a bull work against abuse or misuse of excess use of powers on the part of the executive and protects the citizens against the government lawlessness.

Judiciary – It Need: Expressing the needs for and importance of judiciary a learned jurist aptly remarks: “middle class people are combating with the government powers through media of the courts”. The Indian judiciary is considered as Guardian of the Rights of the citizens of India, explained, argued and emphasized in several contexts.

1. Independence of judiciary

“Judiciary is unlimited”- an unelected judiciary which is not accountable to anyone except its own temperament has taken over significant powers of Indian Governance. The courts have gone well beyond ensuring that laws are implemented. Now, the Supreme Court has invented its own laws and methods of implementation, gained control of bureaucracy and threatened officers with contempt of court if its instructions are not complied with. The question is not whether some good has come out of the all this. The issue is whether the courts have arrogated vase and uncontrolled powers of themselves which undermine both Democracy and Rule of law, including the question is no undermine both Democracy and Rule of Law including the powers exercised under the doctrine of separation of powers.

 (d) Indian Judicial System

The Indian Judicial System is one of the oldest legal systems in the world today. It is part of the inheritance India received from the British after more than 200 years of their Colonial rule, and the same is obvious from the many similarities the Indian legal system shares with the English Legal System. The frame work of the current legal system has been laid down by the Indian Constitution and the judicial system derives its powers from it. The Constitution of India is the supreme law of the country, the fountain source of law in India.

It came into effect on 26 January 1950 and is the world’s longest written constitution. It not only laid the framework of Indian judicial system, but has also laid out the powers, duties, procedures and structure of the various branches of the Government at the Union and State levels. Moreover, it also has defined the fundamental rights & duties of the people and the directive principles which are the duties of the State.

Inspire of India adopting the features of a federal system of government, the Constitution has provided for the setting up of a single integrated system of courts to administer both Union and State laws. The Supreme Court is the apex court of India, followed by the various High Courts at the state level which cater to one or more number of states. Below the High Court’s exist the subordinate courts comprising of the District Courts at the district level and other lower courts.

An important feature of the Indian Judicial System is that it’s a ‘common law system’. In a common law system, law is developed by the judges through their decisions, orders, or judgments. These are also referred to as precedents. Unlike the British legal system which is entirely based on the common law system, where it had originated from, the Indian system incorporates the common law system along with the statutory law and the regulatory law.

Another important feature of the Indian Judicial system is that our system has been designed on the pattern of the adversarial system. This is to be expected since courts based on the common law system tend to follow the adversarial system of conducting proceedings instead of the inquisitorial system. In an adversarial system, there are two sides in every case and each side presents its arguments to a neutral judge who would then give an order or a judgment based upon the merits of the case.

Indian judicial system has adopted features of other legal systems in such a way that they do not conflict with each other while benefitting the nation and the people. For example, the Supreme Court and the High Courts have the power of judicial review. This is a concept prevalent in the American legal system. According to the concept of judicial review, the legislative and executive actions are subject to the scrutiny of the judiciary and the judiciary can invalidate such actions if they are ultra virus of the Constitutional provisions. In other words, the laws made by the legislative and the rules made by the executive need to be in conformity with the Constitution of India.

The powers and the jurisdiction of the Supreme Court, the High Courts and subordinate courts like the District Courts are discussed below.

Jurisdiction & Powers of the Courts

Supreme Court of India

One of the most important powers of the Supreme Court of India is that any law declared or order/judgment passed by it is binding on all the courts within the territory of India.

The jurisdiction and powers of the Supreme Court (SC) are defined under Articles 131 to 142 of the Indian Constitution. The jurisdiction includes original, writ, and appellate jurisdiction.

Original Jurisdiction refers to the power of the court to hear disputes when they arise for the first time. By exercising its power of Original jurisdiction the Supreme Court can hear disputes between,

• Government of India (GoI) and one or more States, or
• GoI & any State or States on one side and one or more States on the other, or
• Two or more States, if it involves a question - of law or fact - on which depends the existence or extent of a legal right.

The Supreme Court has also been conferred the power to issue directions or order or writs under Article 32 of the Constitution for the enforcement of any of the rights provided under Part III of the Constitution, including the Fundamental Rights. This is referred to as the Writ jurisdiction of the Supreme Court. The writ jurisdiction of the Apex court under Article 32 is part of its original jurisdiction.

Appellate jurisdiction refers to the power of the Apex court to hear appeals against any judgment, decree or final order (or sentence) of a High Court in a constitutional, civil or criminal case, where exists a substantial question of interpretation of the constitution, or a law of general importance in case of a death sentence awarded in criminal matters.

However, an additional requirement is that the concerned High Court (HC) under Article 134A has to certify that the case in question is fit for an appeal to the SC.

The jurisdiction of SC also encompasses matters which fell within the jurisdiction of the Federal Court under any law just before the commencement of the Indian Constitution.

The Supreme Court can also grant special leave to appeal against any judgment, decree, determination, sentence or order passed by any court or tribunal in the territory of India in any matter. The exception to this rule is the orders, judgments etc passed by any court or tribunal constituted by or under any law relating to the Armed Forces.

Apart from the original, appellate and writ jurisdiction, the Supreme Court also has special advisory jurisdiction regarding matters referred to it by the President if India under Article 143 of the Constitution.

The Apex court also has the power and authority to review any order or judgment passed by it as well as transfer cases from one High Court to another or from the District Court of one state to the District Court of another State.

High Courts of India

The High Courts of India are the supreme judicial authority at the State level. There are currently 21 High Courts in the country and of these the oldest High Court of India is the Kolkata High Court, which was established in the year 1862.

Their powers and jurisdiction are similar to that of the Apex court, but with a few differences –

• Any law declared or orders/judgments passed by them are not binding on the other High Courts (HCs) of the country or the subordinate courts which fall under the purview of the other HCs unless the other High Courts choose to follow such law or order or judgment.
• Their territorial jurisdiction is varied. The High Courts are the appellate authority for a State or group of States and get a lot of matters in appeal from the subordinate courts.

They have the power to issue writs, just like the Apex court, under Article 226 of the Constitution, but with one difference. While the Supreme Court has the power to issue writs to enforce only the rights provided under Part III of the Constitution, the High Courts can issue writs for enforcement of the rights under Part III as well as “for any other purpose”. Just like in the case of the Supreme Court, the writ jurisdiction of the High Court is also part of their Original jurisdiction, since all writ petitions are filed directly before the High Court. Apart from writ petitions, any civil or criminal case which does not fall within the purview or ambit of the subordinate courts of a State, due to lack of pecuniary or territorial jurisdiction, can be heard by the High Court of that State. Also certain other matters or issues may be heard by the High Court as part of its original jurisdiction, if the law lay down by the legislature provides for it. For example, the company law cases fall within the original jurisdiction of the High Court.

Therefore, the High Courts’ work primarily consists of appeals from the lower courts as well as the writ petitions filed before it under Article 226.

The territorial jurisdiction of a High Court, as mentioned earlier, is varied. Both the Supreme Court and the High Courts are courts of record and have all the powers associated with such a court including the power to punish for contempt of itself.

The Subordinate Courts

The District Courts are at the top of all the subordinate or lower courts. They are however under the administrative control of the High Court of the State to which the district court belongs to.

Their jurisdiction is confined to the districts they are responsible for, which could be just one or more than one. The original jurisdiction of the District Courts in civil matters is confined by not just the territorial limitations, but by pecuniary limitations as well. The pecuniary limitations are laid down by the legislature and if the amount in dispute in a matter is way above the pecuniary jurisdiction of the District Court, then the matter will be heard by the concerned High Court of that State. In case of criminal matters, the jurisdiction of the courts is laid down by the legislature.

The decisions of the District Courts are of course subject to the appellate jurisdiction of the High Courts. Apart from these judicial bodies who enforce the laws and rules laid down by the legislature and executive and also interpret them (the Supreme Court & High Courts), there are numerous quasi judicial bodies who are involved in dispute resolutions. These quasi judicial bodies are the Tribunals and Regulators.

Tribunals are constituted as per relevant statutory provisions and are seen as an alternative forum for redressed of grievances and adjudication of disputes other than the Courts.

Some of the important tribunals are, Central Administrative Tribunal (CAT), Telecom Disputes Settlement Appellate Tribunal (TDSAT), Competition Appellate Tribunal (COMPAT), Armed Forces Tribunal (AFT), Debt Recovery Tribunal (DRT), etc. The kinds of cases the tribunals hear are limited to their specific area. That is TDSAT can hear only matters related to telecom disputes and not matters of armed forces personnel. So the area of operation of these tribunals are marked out at the beginning itself by the statute under which it’s constituted.

The same hold true for the various Regulators like – TRAI, DERC, etc. They regulate the activities of companies which fall under their purview as per the statute.

Thus, the Indian Judicial System is a mix of the Courts and the Tribunals & Regulators, and all these entities working together as part of an integrated system for the benefit of the nation.

1. Judicial Administration in Ancient India

Law in ancient India meant “Dharma” in the broader sense. The Vedas, regarded as divine revelation, were the supreme source of authority for all codes which contained what was then understood as law or dharma. The traditional records have governed and molded the life and evolution of the Hindu community from age to age. These are supposed to have their source in the Rigveda.

Justice was administered in ancient India according to the rules of civil and criminal law as provided in the Manusmriti. There was a regular system of local courts from which an appeal lay to the superior court at the capital, and from there to the King in his own court. The King’s Court was composed of himself, a number of judges, and his domestic chaplain who directed his conscience; but they only advised and the decision rested with the King. Arbitrators in three gradations existed below the local courts: first of kinsmen, secondly of men of the same trade, and thirdly, of townsmen. An appeal lay from the first to the second, from the second to the third, and from the third to the local court. Thus under this system there were no less than five appeals. Decision by arbitration, generally of five (Panches), was very common when other means of obtaining justice were not available. The village headman was the judge and magistrate of the village community and also collected and transmitted the Government revenue.

2. Legal System in India during the British Period

 India has one of the oldest legal systems in the world. Its law and jurisprudence stretches back centuries, forming a living tradition which has grown and evolved with the lives of its diverse people. The history of the present judicial system may be traced back to the year 1726, when a Charter was issued by King George I for bringing about important changes in the judicial administration of the Presidency Towns of Bombay, Calcutta and Madras. The system of appeals from India to the Privy Council in England was introduced by this Charter in 1726. In order to bring about better management of the affairs of the East India Company, the East India Company Regulating Act of 1773 was promulgated by the King. This Act subjected the East India Company to the control of the British Government and made a provision for His

Majesty by Charters or Letters Patent to establish the Supreme Court of Judicature at Fort William at Calcutta, superseding the then prevalent judicial system. The Supreme Court of Judicature at Fort William was established by a letter patent issued on March 26, 1774. This Court, as a court of record, had full power and authority to hear and determine all complaints against any of His Majesty’s subjects for any crimes and also to entertain, hear and determine any suits or actions against any of His Majesty’s subjects in Bengal, Bihar and Orissa. Two more Supreme Courts, conceived along the same lines as that of the Supreme Court of Calcutta, were established at Madras and Bombay by King George III through Charters issued on 26th December, 1800 and on 8th December, 1823 respectively.

The role of the Privy Council has been a great unifying force and the instrument and embodiment of the rule of law in India. The Judicial Committee of the Privy Council was made a Statutory Permanent Committee of legal experts to hear appeals from the British Colonies in the year 1833 by an Act passed by the British Parliament. Thus, the Act of 1833 transformed the Privy Council into a great imperial court of unimpeachable authority.

 The Indian High Court’s Act 1861 reorganized the then prevalent judicial system in the country by abolishing the Supreme Courts at Fort William, Madras, and Bombay, and also the then existing Sadar Adalats in the Presidency Towns. The High Courts were established having civil, criminal, admiralty, vice-admiralty, testimony, intestate, and matrimonial jurisdiction, as well as original and appellate jurisdiction.

 Provincial autonomy was established in India with the establishment of the Government of India Act, 1935, which introduced responsibility at the provincial level and sought the Union of British Indian Provinces with the rulers of Estate in a federation. As a federal system depends largely upon a just and competent administration of the law between governments themselves, the 1935 Act provided for the establishment of the Federal Court, forerunner of the Supreme Court of India. The Federal Court was the second highest Court in the judicial hierarchy in India.

 The Federal Court was the first Constitutional Court and also the first all-India Court of extensive jurisdiction, and it had Original Jurisdiction in matters where there was dispute between the provinces or federal States. It was also the Appellate Court for the judgments, decrees, or final orders of the High Courts. Thus, the Federal Court of India had original, appellate and advisory jurisdiction. The doctrine of precedent in India also had its roots in Federal Court as the law declared by the Federal Court and Privy Council has been given binding affect on all the courts in British India.

3. Constitution of India

The Indian Constitution is basically federal in form and is marked by the traditional characteristics of a federal system, namely Supremacy of the Constitution, division of power between the Union and State, and the existence of an independent judiciary in the Indian Constitution. The three organs of the State – State, Legislature and Judiciary – have to function within their own spheres demarcated under the Constitution. In other words, the doctrine of Separation of Powers has been implicitly recognized by the Indian Constitution. The basic structure of the Constitution is unchangeable and only such amendments to the Constitution are allowed which do not affect its basic structure or rob it of its essential character. The Constitution of India recognizes certain basic fundamental rights for every citizen of India, such as the Right to Equality, the Right to Freedom, the Right against exploitation, the Right to Freedom of Religion, Cultural and Educational rights, and the Right to Constitutional Remedies.

Any infringement of fundamental rights can be challenged by any citizen of India in the court of law. The Constitution of India also prescribes some fundamental duties on every citizen in India.

4. Union and State Judiciary

The Constitution of India deals with the “Union Judiciary,” which provides for the establishment and constitution of the Supreme Court. The Supreme Court, since its inception, was empowered with jurisdiction far greater than that of any comparable court anywhere in the world. As a federal court, it has exclusive jurisdiction to determine disputes between the Union of India and any state and the states inter-se. Under Article 32, it issue writs for enforcement of fundamental rights guaranteed under the Constitution of India.

As an appellate court, it could hear appeals from the state high courts on civil, criminal and constitutional matters. It has the special appellate power under Article 136 to grant leave to appeal from any tribunal or

court. Thus, it is a forum for the redressing of grievance not only in its jurisdiction as conferred by the constitution, but also as a platform and forum for every grievance in the country which requires judicial intervention. The Supreme Court, with the present strength of 25 judges and the chief justice, is the repository of all judicial powers at the national level. Supreme Court judges holds office until they reach the age of 65 years.

The State Judiciary consists of a high court for each state and subordinate courts in each district. Each high court consists of a chief justice and a number of puisne judges. The high court judges are appointed by the President after consultation with the chief justice of India and the chief justice of that state. The high court judge holds office until he reaches the age of 62 years.

5. Independence of Judiciary

The principle of the independence of justice is a basic feature of the constitution. In a country like India, which is marching along the road to social justice with the banner of democracy and the rule of law, the principle of independence of justice should not only be treated as an abstract conception but also a living faith.

Independence of justice deals with the independence of the individual judges in relation to their appointment, tenure, and payment of salaries, and also non-removal except by process of impeachment. It also means the “Institutional Independence of the Judiciary”. The concept of independence of justice is a noble concept which inspires the constitutional scheme and constitutes the foundation on which rests the edifice of our democratic polity. It is absolutely essential that the judiciary must be free from executive pressure or influence and this has been secured by the constitution maker by making elaborate provisions in the constitution of India.

6. Law Commission of India

 The Law Commission of India was started in 1955 by an executive order. In order to confront new situations and problems which arise from time to time and to amend law which calls for amendment, a body like the Law Commission is absolutely essential. This is because it is a body which is not committed to any political party and which consists of judges and lawyers, who are expert in the field and who would bring to bear upon the problems purely judicial and impartial minds. As the parliament is very busy in day-to-day debates and discussions, its members do not have the necessary time to consider legal changes required to meet the new situations and problems in a constructive manner. For that the Law Commission may be able to serve its purpose effectively. The function of the law commission is to study the existing laws, suggest amendments to the same if necessary, and to make recommendations for enacting new laws. The recommendations for amendment of the existing laws are made by the commission either suo motu or on the request of the government. Presently, the eighteenth Law Commission is in existence. The Law Commission in India has brought out 207 scholarly reports to date on various legal aspects. The full text for each report is available on the commission’s website.

7. Legal Profession

 The profession of law is called a noble profession, and lawyers are a force for the perseverance and strengthening of constitutional government because they are guardians of the modern legal system. The first step in the direction of organizing a legal profession in India was taken in 1774 with the establishment of the Supreme Court at Calcutta. The Supreme Court was empowered “to approve, admit and enroll such and so many advocates, Vakils and Attorneys-atlaw” as to the court “shall seem meet”. The Bengal Regulation VII of 1793 for the first time created a regular legal profession for the companies’ courts. Other, similar regulations were passed to regulate the legal profession in the Companies courts in Bengal, Bihar, Orissa, Madras, and Bombay.

The Legal Practitioner Act of 1879 was enacted to consolidate and amend the law relating to legal practitioners. This empowered an advocate/Vakil to enroll on the roll in any high court and to practice in all the Courts subordinate to the high court concerned, and also to practice in any court in British India other than the high court on whose roll he was not enrolled.

After independence of India, it was felt that the judicial administration in India should be changed according to the needs of the time. Presently, the legal profession in India is governed by the Advocates Act of 1961, which was enacted on the recommendation of the Law Commission of India to consolidate the law relating to legal practitioners and to provide for the constitution of the Bar Council and the All India Bar. Under the Advocates Act, the Bar Council of India has been created as a statutory body to admit persons as advocates on its roll, to prepare and maintain such roll, to entertain and determine instances of misconduct against advocates on its roll and to safeguard the rights, privileges, and interests of advocates on its roll. The Bar Council of India is also an apex statutory body which lays down standards of professional conduct and etiquette for advocates, while promoting and supporting law reform.

8. Legal Education

Legal education in India is regulated by the Bar Council of India, which is a statutory body constituted under the Advocates’ Act of 1961. There are two types of graduate level law courses in India:

(i) A 3 year course after graduation; and,

(ii) A 5 year integrated course after the 10 + 2 leading to a graduate degree with honors and a degree in law.

The Bar Council of India rules prescribe norms for recognition of the universities/colleges imparting legal education. A graduate from a recognized law college, under the Advocates Act of 1961, is only entitled to be registered as an advocate with the Bar Council, and any law graduate registered with Bar Council is eligible to practice in any court of law in India.

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