indian judiciary

7/30/2019 Indian Judiciary

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The Indian Judiciary


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Indian law refers to the system of law whichoperates in India.

It is largely based on English common law.

Various Acts introduced by the British are stillin effect in modified form today.

Much of contemporary Indian law shows

substantial European and American influence.


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History of Indian law

Ancient India represented a distinct tradition of

law.

India had an historically independent school of

legal theory and practice.

TheArthashastra ( written by Chanakya), dating

from 400 BC, and theManusmriti, from 100 AD,

were influential treatises in India. Manu's central philosophy was tolerance and

pluralism, and was cited across Southeast Asia.


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Indian Judicial System

The three-tiered system of Indian judiciarycomprises of Supreme Court (New Delhi) at itshelm;

High Courts standing at the head of state judicialsystem;

Followed by district and sessions courts in thejudicial districts, into which the states are divided.

The lower rung of the system then comprises ofcourts of civil (civil judges) & criminal(judicial/metropolitan magistrates) jurisdiction.


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INDIA

INDIAN JUDICIARY

SUPREME COURT

HIGH COURT

DISTRICT COURT

SUB-DIVISIONAL COURT

NYAYA PANCHAYAT/SMALL CAUSES COURT


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The Supreme Court

On the 28th of January, 1950, the Supreme Court came into

being.

The judges of the Supreme Court at the time of inauguration

were Chief Justice Harilal J. Kania and Justices Saiyid Fazl Ali,M. Patanjali Sastri, Mehr Chand Mahajan, Bijan Kumar

Mukherjee and S. R. Das.

The first Attorney General for India was Mr. M.C. Setalvad.


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The High Courts Cont

The High Court hears First Appeals from the decisions of the

District Courts.

Section 100 of the Code of Civil Procedure provides for a

Second Appeal from Appellate decrees.

Under Section 115 of the Code, the High Court is conferred

wish provisional jurisdiction.

Under Article 227 of the Constitution also, the High Court in

the exercise of its powers of superintendence entertains

revision petitions to correct errors on the part of lower

Courts and Tribunals in Judicial & Quasi Judicial matters.


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The High Courts Cont

On the Criminal side, the High Court has to confirm all

sentences of death passed by Courts of Sessions and hear

References in this behalf.

High Court hears Criminal Appeals from convictions awardedby Sessions Judges and Additional Sessions Judges or from the

judgment of any other Court, where a sentence for more than

seven years imprisonment has been passed.

The High Court is also empowered to entertain appeals fromorders of acquittal passed by any Court.

High Court has also been conferred with Criminal Provisional

Jurisdiction.


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The Subordinate Courts

This subordinate Courts are: (a) District Courts, empowered to hear appeals from courts of

original civil jurisdiction besides having original civil

jurisdiction

(b) Sessions Court is courts of criminal jurisdiction, having thesimilar scope of powers.

The courts of specific original jurisdiction are courts of Civil

Judges, of Judicial Magistrates; Small Causes courts & Courts of

Metropolitan Magistrates.


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Quasi - Judicial System

This appendage to the Indian judicial system is a recent & sincere

attempt on the part of the government to expedite the judicial

process through dilution of procedural formalities & avoidance of

litigation.

Tribunals form an indispensable part of this system, which areappointed by the government and comprise of judges & experts

on the particular field, for which the tribunal has been

constituted.

Ex: Human Rights Commission, Consumer Forums, WomenProtection Cell and so on


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Unified Judiciary

Features of the Indian Judiciary

Power of Judicial Review

Judicial Independence


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Source of Law

Primary Source:

a. The primary source of law is in the

enactments passed by the Parliament or the

State Legislatures.

b. The President and the Governor have limited

powers to issue ordinances.

c. These ordinances lapse six weeks from the

re-assembly of the Parliament or the State

Legislature.


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Source of Law Cont.

Secondary Source:

a. Secondary source of law is the judgments of

the Supreme Court, High Courts and some ofthe specialised Tribunals.

b. The Constitution provides that the law

declared by the Supreme Court shall be

binding on all courts within India.


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Criminal law

Indian Penal Code (IPC) provides a penal code for allof India including Jammu and Kashmir, where it was

renamed the Ranbir Penal Code (RPC).

The code applies to any offence committed by anIndian Citizen anywhere and on any Indian

registered ship or aircraft.

Indian Penal Code came into force in 1862 (duringthe British Raj) and is regularly amended, such as to

include section 498-A.


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Civil Procedure Code

The Civil Procedure Code (C.P.C.) regulate the functioningof Civil courts.

It lays down the:

- Procedure of filing the civil case.- Powers of court to pass various orders.

- Court fees and stamps involved in filing of case.

- Rights of the parties to case (plaintiff & defendant)

- Jurisdiction & parameters of civil courts functioning.- Specific rules for proceedings of a case.

- Right of Appeals, review or reference.


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Family law

Indian civil law is complex, with each religion

having its own specific laws which they adhere

to.

After independence Indian laws have adapted

to the changing world.

The most recent being the Domestic Violence

Act[2005].


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Industrial and Labour Laws

The most notable laws are as follows:

Industrial Dispute Act, 1947

Wages Act, 1948

Employees State Insurance Act, 1948

Employees Provident Fund and Miscellaneous ProvisionsAct, 1952

Beedi and Cigar workers Act, 1974

Equal Remuneration Act, 1976

Contract Labour Act, 1970

Child Labour Act, 1986

Bonded Labour System Act, 1976


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Writs

The Writs are issued by the Supreme Court underArticle 32 and by the High Courts under Article 226of the Constitution of India.

Types of Writs:

Writ of prohibition

Writ of habeas corpus Writ of certiorari

Writ of mandamus

Writ of quo warranto


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Qualification for Appt. as Judge

Citizen of India

AND

High Court Judge for at least 5 yearsOR

High Court Advocate for at least 10 years

ORDistinguished Jurist


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Impeachment of a Judge

Grounds: Proved Misbehaviour or Incapacity

Procedure:

A Motion addressed to the President signed by 100

members of Loksabha or 50 members of

Rajyasabha

Investigation by Judges Inquiry Committee Motion carried in each House by majority of the

total membership and by a majority of at least two

thirds members present and voting

Presidents order for removal of the Judge


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Independence of Judges

Appointment of Judges after Consulting Judges

Removal by Special Majority: Very difficult

Salaries and Pensions cannot be varied to theirdisadvantage

Salaries charged on the Consolidated Fund of India

Discussion of the conduct of Judges forbidden inParliament

After retirement prohibition to plead in Court

Power to punish for its Contempt


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Jurisdiction

Original Jurisdiction - Art. 131

Writ Jurisdiction

Appellate Jurisdiction: Civil

Appellate Jurisdiction: Criminal

Special Leave to Appeal - Art. 136

Advisory Jurisdiction

Review

Court of Record

Laying down Precedent

Complete Justice: Art.142


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Original Jurisdiction

Dispute between:1. Govt. of India and any State

2. Govt. of India and any State on one side and anyother State on other side

3. Two or more States inter se

Subject matter of Dispute:Any question of Law or Fact on which

existence or extent of legal right depends. Exceptions:

1. Pre-Constitution Treaties, Agreements

2. Inter-State Water disputes


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Writ Jurisdiction: Art. 32

Habeas Corpus

Mandamus

Prohibition

Certiorari Quo Warranto


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Habeas Corpus

To have a body

Object: To set free a person illegally detained

Producing Body in Court Necessary? Petition by friend/Relative also. Locus Standi

liberalised

Writ addressed to:

Government

An Official

Private Person

For disobedience : Contempt of Court


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Mandamus

Mandamus = A Command Order to do something: demands some activity

Command to perform Public or Quasi-public duty

Writ available against:

Government

Public Servant

Judicial Body

Writ not available against President of India

Governor

Private Individual


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Prohibition

Order to stay a judicial Proceeding

When?

Excess of Jurisdiction

No Jurisdiction

During pendency of proceeding (Prevention)

To whom?

Judicial Authority

Quasi-judicial Authority Public Servant having duty to act judicially

Not to Administrative Authority


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Certiorari

To whom: Judicial or Quasi-Judicial Authority Object: To quash order or decision (Cure)

When?

Court or Tribunal acts without jurisdiction

Principles of Natural Justice not followed:

Bias: Personal, Pecuniary

Audi Alteram Partem

Speaking Order

Decision obtained by Fraud, Collusion, Corruption

Error of Law apparent on the face of record


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Quo Warranto

Quo Warranto = What authority? Court inquires into legality of claim to Public

Office

Court ousts incumbent if claim not well founded

Object: To prevent usurpation of Public Office(Constitutional or Statutory)

When? Disqualified for the post

Procedure not followed

Irregular appointment

Locus standi liberal


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Appellate Jurisdiction

Civil

From Judgment, Final Order, Decree, Sentence of High Court

Constitutional Question involved:

Substantial question of Law as to the Interpretation of theConstitution

And

Certificate of the High Court

No Constitutional Question involved:

Substantial Question of Law of general importance

And

In the opinion of the High Court the said question needs to bedecided by the Supreme Court

And

Certificate of the High Court


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Appellate Jurisdiction

Criminal

As of right: HC on appeal reverses an order of Acquittal

and sentences to death.

HC withdraws a case to itself from subordinatecourt and sentences to death.

HC enlargement of Cr. App. Juris. Act, 1970

On Certificate of the High Court

High Court certifies a criminal case as fit onefor appeal to the Supreme Court.

Substantial question of law as to theinterpretation of the Constitution + Cert. of HC


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Special Leave to Appeal

(SLP) Art. 136

Discretionary power

Unfettered power

From : Any judgment, decree, order, sentence,

determination in any cause or matterPassed or made by any Court or Tribunal

Exception: Judgment of court of the Armed Forces

When? In exceptional cases

Illegality, Irregularity, Error of Law

Miscarriage of Justice

Principles of Natural Justice violated


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Advisory Jurisdiction 1

Art. 143

President may refer to Supreme Court foropinion

Question of Law or Fact:Which has arisen or likely to ariseAnd of great public importance

Court mayafter Hearing report to the President

Court Shallafter Hearing report

Judges to hear: Minimum 5

No litigationOpinion not binding on the Govt.


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Advisory Jurisdiction 2

Art. 143

In re Delhi Laws Act case (1951)

In re Kerala Education Bill (1958)

In re Berubari Union (1960)

Keshav Singhs case (1965)

The Special Courts reference (1978)

Cauvery Water Disputes Tribunal (1992)

Ismail Faruqui v. Union of India (RamJanma Bhumi case) (1994)

Judges Appt. and Transfer reference (1999)


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Review

To review any judgment pronounced

or order made

Subject to Law passed by Parliament When?

Discovery of new important matters of evidence

Mistake or error on the face of the record

Any other sufficient reason

Review is exceptional phenomenonOnly where a grave and glaring error


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Court of Record

Power to punish for Contempt of itself


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Miscellaneous

Transfer of Cases, Appeals from one HighCourt to another

Withdrawal of cases from High Court

Precedent: Law declared by Supreme Courtbinding on all courts. (Art. 141)

Art. 142: Doing complete justice

Rule making power Interpretation of the Constitution

Power of Judicial Review (Invalidating laws

and executive actions)


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Are you aware that...

About two-thirds of our laws have not been used in

independent India.

About 10 per cent of them can be scrapped right away.

And most of the 10 per cent in use currently have so manyobsolete and conflicting provisions.

The oldest law in the country has been in operation for over

a century and half. The one sentence 1836 Bengal District

Act empowers the Bengal government to create as many

zillas as it wants. The Act still exists.


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Are you aware that... Cont

Under the Indian Sarais Act, 1867, it is a punishable offencefor inn-keepers not to offer free drinking water to passer-by.

Only about 40 per cent of our laws are in regular use.

Independent India has till now found no conceivable use forthe rest.

While India badly needs efficient laws, the time spent by thelaw-making body on the job is unbelievably little.

Parliament spends less than 0.6 per cent of a Lok Sabha dayon law-making.


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Elections take place regularly in any democracy. There are more than onehundred countries in the world in which elections take place to choose

peoples representatives. Elections are held in many countries that are notdemocratic.

But why do we need elections? Let us try to imagine a democracy without

elections. A rule of people is possible without any elections if all the peoplecan sit together everyday and take all the decisions. But, this is not possiblein any large community. Nor it is possible for everyone to have the timeand knowledge to take decisions on all matters. Therefore in mostdemocracies people rule through their representatives.

In an election the voters make many choices: They can choose who will make laws for them.

They can choose who will form the government and take major decisions.

They can choose the party whose policies will guide the government andlaw making.


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An independent Election Commission has been established to carry out and

regulate the holding of elections in India.

The Election Commission is responsible for the conduct of elections.

It maintains the Electoral Roll, supervises the nomination of candidates etc.

The electoral roll is a list of all people in the constituency who are registeredto vote in Indian Elections.

Only those people with their names on the electoral roll are allowed to vote.

The electoral roll is normally revised every year to add the names of those

who are to turn 18.


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Elections refer to choosing of a Leader in Indiainvolving political mobilization and organizationalcomplexity.

The direct cost of organizing the election of 1996 wasapproximately Rs.5,180 million.

The country has been divided into 543 Parliamentary

Constituencies.

The size of the constituencies are determined tocreate constituencies which have roughly same

population.


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The Parliament consists of President, the Lok Sabhaand the Rajya Sabha .

Although the government is headed by PM, the

Cabinet is the central decision making body of thegovernment.

Other parties can also govern along with thegoverning party if they have the confidence vote.


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The Constitution puts a limit on the size of the

Lok Sabha of 550 elected members.

There are also provisions to ensure the

representation of SCs and STs with reservedconstituencies.


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The members of the Rajya Sabha are elected indirectly.

The number of members per each state is in proportion to theirpopulation.

At present there are 233 members in the Rajya Sabha .

The Vidhan Sabha is set up to carry out the administration. Delhi and Pondicherry , also have legislative assemblies .

Elections to the Vidhan Sabhas are carried out in the samemanner as for the Lok Sabha


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Well Learn about Parliament & functions of

State & Union ministers in later units.

indian judiciary

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