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 the social 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.

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 be administered without fear or favor. Integrity, Impartiality and Intelligence are some of the important characteristics of the in dependent judiciary in a democratic setup.

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 the Supreme Court as the highest or the apex court. Then there are High Courts at the state level and subordinate courts below them.

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 this purpose. 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 the power 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.

(ii) The Appellate Jurisdiction: The Appellate jurisdiction of the Supreme Court 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, decree or 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 authority and 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

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 Supreme Court 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. SAT present 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 least for 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

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 in any 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 the President 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 in the 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)).

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 work under 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 description of 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 fundamental rights. 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,

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 full powers 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 to cases 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 the State 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

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.

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 the Court 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 of constitutional 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.

Control over its Officers and Employees:

The High Court has complete control over its officers and employees. 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 office connected 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 Chief Justice 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 decision will 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.

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 the power 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.

Qualifications for the Judges

(a) He should be a citizen of India. (b) He should have been an advocate in one or more High Courts 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 by resigning. 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 by an 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 Fifteenth Constitutional 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.

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 resolution must 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 and keeps 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 with same safeguards as the judges of the Supreme Court. This greatly ensures their impartiality and independence.

The Subordinate Courts of India

District Court is the principal court of civil jurisdiction. District Courts of India are established by the State 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 subject to 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 a High 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 court presided 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

them. The district judge is also called "Metropolitan session judge" when he is presiding over a district court in a city which is the designated "Metropolitan area" by the state Government. There are many other courts subordinate to the court of District and Sessions Judge. The district court has appellate jurisdiction over all subordinate courts situated in the district on both civil and criminal matters. Subordinate courts on the civil side in ascending order are: Junior civil judge court, Principal junior civil judge court, Senior civil judge court (also called sub court). Subordinate courts on the criminal side in ascending order are: Second class judiciary magistrate court, First class judiciary magistrate court, Chief judiciary magistrate court. Gram Nyayalayas Act, 2008 is an Act of Parliament of India enacted for establishment of Gram Nyayalayas or village courts for speedy and easy access to justice system in the rural areas of India. The Act came into force from 2 October 2009. However, the Act has not been enforced properly, with only 151 functional Gram Nyayalayas in the country (as of May 2012) against a target of 5000 such courts. The major reasons behind the non-enforcement includes financial constraints, reluctance of lawyers, police and other government officials.

Features
Gram Nyayalaya are established generally at headquarter of every Panchayat 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 a Nyayadhikari, 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 area specified 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 criminal jurisdiction 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.100 irrespective of the value of property in dispute.

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 cases relating 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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