Parliamentary Democracy works on the principle of ‘Division of Power,’ and in the making of law there is direct participation of the legislature and the executive. It is only the judiciary that remains independent and strong safeguarding the interests of the citizens by not allowing the other organs to go beyond the constitutional limits. It acts, therefore, as a check on the acts of the other two organs which might violate the Constitution, structure and powers assigned to them.
Only Judiciary has the powers of interpreting the Constitution and its mandates, and the say of judiciary has to be followed by all organs.
Indian judiciary is a single integrated and unified system of Courts for the Union as well as the States, which administers both the Union and State laws, and at the head of the entire system stands the Supreme Court of India. The development of the judicial system can be traced to the growth of Modern– Nation–States and constitutionalism.
STRUCTURE OF JUDICIARY
Under the Indian Constitution there is a single integrated system of Courts for the Union as well as the States, which administer both Union and State laws, and at the head of the system stands the Supreme Court of India.
Below the Supreme Court are the High Courts of different States and under each High Court there are ‘subordinate courts’, i.e., courts subordinate to and under the control of the High Courts.
At the top of the judicial system is Supreme Court of India followed by High Courts at State level. There are 25 High Courts in the Country.
At the District level, there are Subordinate District Courts.
Supreme Court of India
The Supreme Court is the apex Court at national level which was established on 28th January 1950, under Article 124(1) of the Constitution of India.
The Supreme Court of India consists of a Chief Justice and, 30 other Judges. The Parliament may increase this number by law. Originally, the total number of judges was seven but in 1977, it was increased to 17 and in 1986 to 25, excluding the Chief Justice. Later in 2009, it was fixed at 31 Judges including the Chief Justice of India.
Under article 124(2), Supreme Court judges are to be appointed by the President “after consultation with such judges of the Supreme Court and of the High Courts as the President may deem necessary”. The provision in the Article says that in the case of appointment of a judge other than the Chief Justice, the Chief Justice of India shall always be consulted. It is obligatory for the Government in which it has to consult the Chief Justice and other judges.
Significantly, the appointment is not required to be made in consultation but only ‘after consultation’, and the opinion should be in written. In actual practice, after receiving the opinion of the Chief Justice, the Cabinet deliberates on the matter and advises the President in regard to the persons to be appointed. The President acts on the advice.The Chief Justice has to consult four senior most Judges of the Supreme Court and if two of the four disagree on some name, it can not be recommended. Infact, decisions are to be taken by consensus where the Chief Justice and at least three of the four Judges agree.
A person to be qualified for appointment as a Judge of the Supreme Court–
- must be a citizen of India;
- should have been a Judge of the High Court for at least five years; z should have been an advocate of the High Court for at least ten years; and
- is a distinguished Jurist in the opinion of the President
Interestingly, a non-practising or an academic lawyer may also be appointed as Judge of the Supreme Court, if he/she is, in the opinion of the President, a distinguished Jurist. But in India so far, no non practising lawyer has been appointed as a Judge of the Supreme Court.
Every person appointed as a judge of the Supreme Court, before he/she enters upon his office, takes an oath before the President or some other person appointed by him in the form prescribed in III Scheduled of the Constitution.
Every Judge of the Supreme Court holds office until the age of 65 years. A judge may be removed from his/her office only by an order of the President passed after an address by each House of Parliament for his removal on the ground of ‘proved misbehavior or incapacity’, supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members present and voting in the same session.
The procedure of the presentation of an address for investigation and proof of misbehavior or incapacity of a Judge will be determined by Parliament (Article 124 (5)).The Supreme Court has held that a Judge of the Supreme Court or High Court can be prosecuted and convicted for criminal misconduct. The expression ‘misbehavior’ in article 124 (5) includes criminal misconduct as defined in the Prevention of Corruption Act.
The Constitution prohibits a person who has held office as a judge of the India-II Supreme Court from practising law before any Court in the territory of India (Article 124(6) and (7)). But under Article 128, the Chief Justice may appoint the retired Judges of the Supreme Court to sit and act as Ad hoc Judges in the Supreme Court.
When the office of the Chief Justice of India is vacant or when the Chief Justice is unable to perform the duties of his office due to absence, the President shall appoint an Acting Chief Justice from among the Judges of the Supreme Court to perform the duties of the Chief Justice (Article 126).
If at any time, there is no quorum of judges of the Supreme Court available to hold or continue any session of the Court, the Chief Justice of India is empowered to appoint Ad hoc judges in the Supreme Court from among judges of High Courts, having qualifications to be appointed Judges of the Supreme Court, for such period as he/she deems necessary. He/she can do so only with previous consent of the President and after consultation with the Chief Justice of the High Court concerned. The Judge so appointed is duty bound to give priority to the Supreme Court duties.
The Chief Justice of India may also invite a retired Judge of the Supreme Court or a retired Judge of the High Court having the qualification to be Judge of the Supreme Court, to sit and act as a Judge of the Supreme Court for such period as he deems necessary. This has to be done with the previous consent of the President and also of the person to be appointed (Article 127 and 128).
Judges of the Supreme Court are to be paid such salaries as may be determined by Parliament by law and until so determined salaries are laid down in the Second Schedule (Article 125). In addition to this, they are also allowed sumptuary allowances, rent free furnished residences, telephone, water, electricity, medical and many other facilities.
The Constitution provides that Supreme Court shall sit in Delhi. However, the Chief Justice of India may with the previous approval of President be able to sit in such other place or places as he/she may decide (Article 130). At present, the Supreme Court is functioning from Delhi.
POWERS AND JURISDICTION OF THE SUPREME COURT
Article 129 provides that the Supreme Court shall be a Court of record and shall have all powers of such a Court. Being the highest court of the land, its proceedings, acts and decisions are kept on record for perpetual memory and for presentation as evidence, in support of the law.
Being a Court of record it implies that its records can be used as evidence and cannot be questioned for their authenticity in any court. Court of record also means that it can punish for its own contempt. But this is a summary power, used rarely and under pressing circumstances. It does not restrict genuine and well intentioned criticism of Court and its functioning. Fair and reasonable criticism of judicial acts in the interest of public good does not constitute the contempt.
The Supreme Court has original, appellate and advisory jurisdictions.
Original Jurisdiction
Original Jurisdiction means the power to hear and determine a dispute in the first instance. The Supreme Court has been given exclusive Original Jurisdiction which extends to disputes:
- between the Government of India and one or more States.
- between the Government of India and one or more States on one side and one or more States on the other.
- between two or more States.
The Supreme Court in its original jurisdiction cannot entertain any suits brought by individuals against the Government of India. The dispute relating to the original jurisdiction of the Court must involve a question of law or fact on which the existence of legal right depends. This means that the Court has no jurisdiction in matters of political nature. However, this jurisdiction shall not extend to a dispute arising out of a treaty, agreement etc. which is in operation and excludes such jurisdiction (Article 131).
The Constitution of The jurisdiction of Supreme Court also excludes in inter-State water disputes India-II (Article 262), matters referred to the Finance Commission (Article 280) and adjustment of certain expenses and pensions between the Union and States (Article 290). If any dispute is to be brought before the Supreme Court, it must involve a question of law on which the legal right depends.
Under Article 139A, the Supreme Court may transfer to itself cases from one or more High Courts if these involve questions of law or of great importance. The Supreme Court may transfer cases from one High Court to another in the interest of justice.
The Original Jurisdiction of the Supreme Court also extends to cases of violation of the Fundamental Rights of individuals and the Court can issue several Writs for the enforcement of these rights (Article 32). It is a unique feature of our Constitution that in principle, any individual can straightway approach the highest Court in case of violation of his/her Fundamental Rights.
Appellate Jurisdiction
The Appellate Jurisdiction of the Supreme Court extends to civil, criminal and constitutional matters. In a civil matter, an appeal lies to the Supreme Court from any judgment, decree or final order of a High Court if the High Court certifies under Article 134A that a ‘substantial question of law’ of general importance is involved and the matter needs to be decided by the Supreme Court.
The High Court grants certificate only where there have been exceptional circumstances where substantial and grave injustice has been done. Thus, a certificate cannot be granted by the High Court on mere question of fact, where no substantial question of law is involved.
In criminal cases, an appeal to the Supreme Court shall if the High Court:
- has reversed an order of acquittal of an accused person and sentenced him to death.
- has withdrawn for trial before itself any case from any subordinate court to its authority and has in such trial convicted the accused person and sentenced him to death (Article 134).
It is to be noted that before the commencement of the Constitution, there was a Federal Court in India. It was created by the Government of India Act 1935 and has been abolished by the Constitution of independent India.
Article 135 was included in the Constitution to enable the Supreme Court to exercise jurisdiction in respect of matters where the Federal Court had the jurisdiction. Under Article 136 the Supreme Court, by its own, may grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause
The Constitution of India-II or matter passed or made by any court or tribunal in the territory of India. These powers of the Supreme Court to grant ‘special leave to appeal’ are far wider than the High Court. The Supreme Court can grant special leave against judgments of any court or tribunal in the territory, except the military courts, and in any type of cases, criminal or revenue. But the Supreme Court has itself said that it will grant special leave to appeal only in cases where there has been gross miscarriage of justice or where the High Court or Tribunal is found to have been wrong in law. So, it is not taken as a usual practice.
Article 137 provides for the Supreme Court having the power to review its own judgments and orders. The Supreme Court has held that a judgement of the apex Court of the land is final. A review of such a judgement is an exceptional phenomenon, permitted only where a grave error is made out.
Advisory Functions
Article 143 of the Constitution confers upon the Supreme Court the Advisory Jurisdiction. The President may seek opinion of the Supreme Court on any question of law or fact of public importance on which he/she thinks it is expedient to obtain such an opinion. On such references from the President, the Supreme Court may report to him/her its opinion thereon.
The opinion is only advisory, which the President is free to follow or not to follow. Also, it depends upon the Supreme Court whether to give opinion or not depending on the case. Article-139 lays down that Parliament may confer on the Supreme Court power to issue directions, orders or writs in matters not already covered under Article 32.
Under Article-140, Parliament may supplement the powers of the Supreme Court to enable it to perform effectively the functions placed upon it under the Constitution. Law declared by the Supreme Court is binding on all courts in India under Article-141. Article-142 provides that the Supreme Court in exercise of its jurisdiction may pass such decrees or orders as necessary for doing complete justice.
The decree or order made by the Court shall be enforceable throughout the territory of India in such a manner as prescribed by the Parliament. Until provision is made by the Parliament, the orders of the Court will be enforced in the manner prescribed by the President. 355 The Judiciary
The Constitution of For purpose of giving effect to the directions and decisions of the Supreme India-II Court, all authorities, civil and judicial, in the territory of India, have been made subordinate to the authority of the Supreme Court (Article 144). The Supreme Court may from time to time, and with the approval of the President, make rules for regulating generally the practice and procedure of the Court.
HIGH COURT AND THE SUBORDINATE COURTS
The Constitution of India provides a High Court for each State. The Parliament may, however, establish a common High Court for two or more States and a Union Territory (Article 214 & 231). Similar to the Supreme Court, every High Court is also a Court of record and has the entire original and appellate jurisdiction together with the power to punish for contempt (Article 215).
The Chief Justice of a High Court is appointed by the President after consulting the Chief Justice of India and Governor of the State and in case of appointment of Judges, other than the Chief Justice, the Chief Justice of the concerned High Court is also consulted.
For a person to be appointed as a Judge of the High Court he/she must:
- be a citizen of India z have ten years of service in Judicial Office, or
- have ten years of experience as a High Court Advocate
Every High Court Judge must take an oath of office. He/she holds the office until the age of 62 years. He/she can only be removed from his office in the same manner as provided for the removal of a Judge of the Supreme Court. After retirement, he/she is also restricted to plead before the court he retired from and subordinate courts but he/she can practice in other High Courts and the Supreme Court.
Every High Court Judge is entitled to a salary and allowances as decided by Parliament or as specified in the Second Schedule of the Constitution. After Consulting the Chief Justice of High Court, the President can transfer Judges from one High Court to the other (Article 222). He may also appoint an acting Chief Justice of the High Court and if needed, the additional and other acting Judges for a limited period of two years.
Also, the Chief Justice of a High Court with the consent of the President can appoint a retired judge to sit and act as a Judge. Every High Court shall consist of a Chief Justice and such other Judges as the President may appoint from time to time (Article 216). Each High Court has powers of superintendence over all the Courts and Tribunals except the Tribunals ofArmed Forces (Article 227).
When a High Court finds that any lower court has a case pending, which has a substantial question of law, then it can take the case itself for determination or decide the question and send it back to the same court for determination (Article 228). Article 226 provides that every High Court under its jurisdiction has power to issue writs for enforcement of the Fundamental Rights or for any other purpose.
By inserting the word ‘any other purpose’ the High Court has been given much wider power than the Supreme Court. It can issue writs in all the cases of breach of any right while Supreme Court can issue only in the breach of Fundamental Rights. But it should be remembered that the writ in cases other than those of violation of Fundamental Rights is not a normal one. It is an extraordinary remedy which can be expected in special circumstances.
Every Court has the control of its staff. The salaries and allowances of the Judges and of the High Court staff, similar to the Judges of Supreme Court are charged on the Consolidated Fund of the State. The officers and staff of High Courts are appointed by the Chief justice or other such Judge or officer as he/she may decide. The terms and conditions of services of the staff and officers of the court are decided by the rules made by Chief Justice and approved by the President (Article 229).
The jurisdiction of a High Court may be extended to or excluded from a Union Territory (Article 230). As the decisions of the Supreme Court are binding on all courts in India, similarly those declared by the High Court are binding on all subordinate courts within the State and within the territory covered by its jurisdiction.
The Governor after consulting the High Court shall appoint the District Judges. India-II A person who has at least seven years of experience at the bar is eligible for the position of a District Judge (Article 233). Appointments of persons other than District Judges to the Judicial Service of the State are made by the Governor in consultation with the State Public Service Commission and the High Court (Article 234).
The High Court has an entire administrative control over the District Courts and other lower Courts regarding posting, promotions and grant of leaves etc. to any person belonging to the Judicial service of a State and holding any post inferior to the post of a Judge (Article 235).
Article 236 is the interpretation clause and various terms while Article 237 empowers the Governor to apply the provisions regarding Subordinate Courts to any class or classes of magistrate in the State. Over all, Judiciary as a pillar of the democracy, shall stand firm to deliver justice for the sake of mankind. For its impartiality and responsibility it has been kept independent of the influence of the Legislature and the Executive.
With the evolution of ‘Judicial Activism’ and its instruments like the one of PIL has given more and more responsibilities on it. But, in practical terms if the legislative and the executive shall stand accountable and responsive on their duties, then there is no requirements on the part of Judiciary to exceed its jurisdiction.
Subordinate Courts
The judicial system comprises of subordinate courts which represent the firsttier of the entire judicial structure. As a general rule, Civil cases are dealt with by one set of Hierarchy of Court known as Civil Court and Criminal cases by another known as Criminal Court. The Power of Civil courts are governed by Civil Procedure Code (CPC) and power of Criminal Court are governed by Criminal Procedure Code(Cr.pc) respectively. Following is the hierarchy chart of all civil and criminal courts in India.
The hierarchy of courts that lie subordinate to High Courts are referred to as Subordinate Courts. It is for the State Governments to enact for the creation of Subordinate Courts. The nomenclature of these subordinate courts differs from State to State but broadly there is uniformity in terms of the organisational structure (i.e. the hierarchy remains the same for every State at the most).
Below the High Courts, there are District Courts for each district, and has appellate jurisdiction in the district. Under the District Courts, there are the lower courts such as the Additional District Court, Sub Court, Munsiff Magistrate Court, Court of Special Judicial Magistrate of I class, Court of Special Judicial Magistrate of II class, Court of Special Munsiff Magistrate for Factories Act and labour laws, etc. Below the Subordinate Courts, at the grass-root level, are the Panchayat Courts (Nyaya Panchayat, Gram Panchayat, Panchayat Adalat, etc.). These are, however, not considered as courts under the purview of the criminal courts jurisdiction.District Courts can take cognizance of original matters under special status.
The Governor, in consultation with the High Court, makes appointments pertaining to the District Courts. Appointment of persons other than the District Judges to the judicial service of a State is made by the Governor in accordance with the rules made by him in that behalf after consultation with the High Court and the State Public Service Commission. The High Court exercises administrative control over the District Courts and the courts subordinate to them, in matters as posting, promotions and granting of leave to all persons belonging to the State Judicial Service.
