Judiciary

This article is written by Gautam Badlani, a student of Chanakya National Law University, Patna. This article analyses the Judicial System in India and the hierarchy of courts. Furthermore, it also examines the provisions which safeguard the independence of judiciary and the hurdles that the judiciary faces in contemporary times.

This article has been published by Sneha Mahawar.

Introduction

In India, the three branches of the Government are the legislature, the executive and the judiciary. India’s Constitution envisages a division of powers and a system of checks and balances. The judiciary plays a critical role in ensuring that the legislature and the executive do not exceed their Constitutional boundaries and prevents them from the arbitrary exercise of powers. The Constitution of India ensures that the judiciary remains independent of the influence of the legislature and the executive. 

This article analyzes the hierarchy of courts in India and the jurisdiction, powers and functions of the different courts. The article also highlights the various hurdles that are presently faced by the judicial system.

History of Judicial System in India

In ancient India, the lowest court was the family court starting from the family arbitrator and the judge at the highest pedestal was the king. One of the primary duties of the sovereign was the dispensation of justice, and in this process, the King was aided by his counsellors and ministers. As the civilization advanced and the duties of the King were delegated to the judges who had knowledge of the Vedas. Justice was administered on the basis of ‘dharma’ or a structure of rules specifying the responsibilities that an individual must fulfil in his life. Customs served as a source of law. This system continued till the Mughal period.

During the Mughal period, the office of Qazi was responsible for the dispensation of justice. Every provincial capital and every large town had a Qazi. The Qazis held the trial in the presence of the parties and were expected to write their legal documents very carefully. The King was the highest court of appeal. This system of justice was replaced by the British.

The British introduced the common law system in India and established the Sadar Diwani Adalat. They were later followed by the establishment of high courts. The first high court was established at Calcutta in 1862. The high courts were also established in Madras and Bombay. Subsequently, the federal court was established by the Government of India Act, 1935 which had a wider jurisdiction than the high courts. Thus, the present judicial system of India is based largely on the common law system.   

Functions of the Indian Judiciary

  1. Upholding and interpreting the Constitution: The judiciary is responsible for protecting and upholding the Constitution and its ideals. The courts interpret the Constitution and strike down any law, ordinance, rule, or regulation which violates or infringes the Constitutional provisions. 
  2. Resolving inter-state disputes: The Constitution of India lays down a federal structure of governance. Thus, disputes between the states and the Union and the States are inevitable. The judiciary, particularly the Supreme Court, plays a key role in resolving such disputes. 
  3. Protection of Fundamental Rights: Part III of the Constitution confers certain fundamental rights on citizens as well as non-citizens and legal as well as natural persons. The judiciary ensures that these fundamental rights are not violated. If any act of the legislature or the executive abridges these rights, then the Constitutional courts have the power to issue writs.
  4. Assistance in law-making: In several cases, the courts lay down guidelines which are later incorporated in the statutes by the legislature. The courts often make suggestions to the legislature to draft a new law or to modify or amend existing law in order to meet the problems of contemporary society. The judiciary also provides an advisory opinion to the President and resolves any doubts relating to the Constitutional provisions.  

Hierarchy of courts in India

The judicial system in India is hierarchical in nature. There are primarily four layers of hierarchy:

  • The Supreme Court of India,
  • The high court of various states,
  • The subordinate courts,
  • Tribunals,
  • Nyay Panchayats, 
  • Lok Adalat. 

Pictorial representation of the hierarchy of Indian courts 

Image source: Indian Judiciary – Supreme Court, High Court, District & Subordinate Courts – Indian Polity Notes 

The Supreme Court

India has a federal structure of governance and the Supreme Court of India is the federal court. Articles 124 to 147 of the Constitution (Part V) deal with the functions, powers and jurisdiction of the Apex Court.

Historical perspective

The Regulating Act of 1773 established the Supreme Court of judicature at Calcutta. Similar courts were established at Madras and Bombay in 1800 and 1823 respectively. 

The Supreme Court of India is based on the Federal Court of India which was established by virtue of the Government of India Act, 1935. However, it differs from the Federal Court in the sense that appeals from the Federal Court could be made to the Privy Council, whereas the Supreme Court of India is the highest court of appeal and no appeal can be made against its order before any other court. 

The Supreme Court has been conferred with the jurisdiction as well as powers of both the Federal Court as well as Privy Council. The court started functioning on 28th January, 1950. 

Appointment of Judges of the Supreme Court

Article 124(2) of the Constitution lays down the procedure for the appointment of the judges of the Supreme Court. The judges of the Supreme Court are appointed by the President of India in consultation with the Chief Justice of India. The President may consult such judges of the Supreme Court and the high courts as he considers necessary. The Law Minister also advises the President in the matters of appointment of Supreme Court Judges.

In Supreme Court of India (In Re: Appointment & Transfer of Judges v. Civil Advisory Jurisdiction) (1998), the court held that while the President has the power to appoint the judges of the Apex Court, the opinion of the Chief Justice of India will have primary importance in such appointments. The Court held that a collegium consisting of the Chief Justice of India and four more senior-most judges would recommend names to the President and such recommendations would be appointed by the President as judges. The Court observed that the collegium would make recommendations after considering the view of the Supreme Court justices and other judges of the high courts and the members of the Bar. Thus, the collegium would make the most appropriate recommendations to the President. The collegium would make the recommendations to the President in writing. 

Jurisdiction of the Supreme Court

The Supreme Court has original, appellate as well as advisory jurisdiction.

  • Original Jurisdiction: Article 131 provides the original jurisdiction of the Supreme Court. The original jurisdiction of the court extends to the disputes between the Union and the States and disputes between two or more States.

The original jurisdiction of the Indian Supreme Court is not as wide as the American Supreme Court. The American Supreme Court has original jurisdiction in matters concerning ambassadors and ministers. The original jurisdiction of the Indian Supreme Court, on the other hand, extends to only legal and not private persons. The only instance where a private person can directly approach the Apex Court is for enforcing any of the fundamental rights of the individual. 

In the landmark case of State of Karnataka v. Union of India (1977), the Notification of the Central Government established the Commission of Inquiry to inquire into charges of corruption against the Chief Minister of Karnataka and it was challenged by the State Government under Article 131. The Court had to determine whether the said notification could be challenged under Article 131. The Central Government contended that since no legal rights of the State were affected, the petition was not maintainable. The Court held that where the Members of Parliament and the members of State Legislature differently interpret any provision of the Constitution, the dispute can be raised before the Court under Article 131. 

  • Appellate Jurisdiction: The Supreme Court has very wide appellate jurisdiction. Appeals can be made before the Apex Court where the matter involves a substantial question of law. Such matters may be referred either by the sanction of the high court or under a Special Leave Petition [Article 136(1)].

The Constitutional Bench of the Supreme Court, in the case of Sir Chunilal V. Mehta and sons Ltd. v. Century Spinning and Manufacturing Co. (1962), laid down what would constitute a substantial question of law. The court held that if the question is regarded to be of public importance or is deemed to affect the parties’ rights in a substantial manner and if neither the question nor the principles to be applied for its determination have been settled finally by the court, then it would be considered to be a substantial question of law. 

Article 132(1) empowers the Supreme Court to allow appeals against any judgment, order or decree from the high court if the matter is certified to involve a substantial question of law by the high court under Article 134A.

Similarly, in criminal cases, an appeal can be made before the Apex Court with the prior certification of the high court or where the accused is sentenced to death by the high court in the reversal of his acquittal or where the high court sentences a person to death after withdrawing the case from a subordinate court.

In civil cases, appeals can be made before the Apex Court under Article 133(1) subsequent to the high court’s sanction.

  • Advisory Jurisdiction: The Supreme Court is also empowered to give its advisory opinion on any matter referred by the President under Article 143(1). The President can seek the advisory opinion on any question of law or of public importance or where the matter is concerned with any treaty or agreement relating to pre-constitutional times.

The advisory opinion of the court is not binding on the government. In the case of In Re: The Special Courts Bill (1978), a private member Bill was introduced in the Parliament for setting up Special Courts for the purpose of deciding cases involving offences committed by public officers during emergencies. The President sought the opinion of the court regarding the constitutionality of the Bill. The court held that the Parliament was empowered to establish such courts. However, the court held that the opinion was not binding on the parties. The opinion of the court has significant judicial importance and will not bind the parties. 

  • Review Jurisdiction: Under Article 137, the Supreme Court is empowered to review any of its previous judgments.

It is pertinent to note that Article 262 empowers the Parliament to confer or deprive, by law, the Apex Court of the jurisdiction in respect of matters relating to control, operation or distribution of inter-state river waters. The jurisdiction of the Supreme Court can be extended by the Parliament by virtue of Article 138.

Functions of the Supreme Court

The Supreme Court has the following functions:

  • It is responsible for interpreting the provisions of the Constitution. If any Central or State law is found to be contravening or violating any of the Constitutional provisions or if any law infringes the fundamental rights conferred by the Constitution, then the Supreme Court can strike down such law and declare it to be unconstitutional. 
  • The Supreme Court frames guidelines and rules and lays down the procedure for its own functioning. 
  • The Supreme Court is responsible for protecting and upholding the fundamental rights of the citizens. The court can issue writs under Article 32 for enforcing the rights of the citizens.
  • The Supreme court is responsible for the protection and upholding of the integrity of the entire judicial system and can punish those for contempt who make derogatory comments against the judiciary. 
  • It resolves the disputes between the Union and the States as well as between two or more states. 
  • It is the highest court of appeal. It hears appeals against the judgments of the subordinate courts and tribunals and gives final judgments on the matters. 

Article 141 provides that the subordinate courts would be bound by the law laid down by the Apex Court. 

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High Courts

The Constitution provides for a High Court in each State under Article 214. However, the Parliament is empowered to establish a common high court, by law, for two or more states. For example, the high court of Punjab and Haryana has jurisdiction over both Punjab as well as Haryana.

Appointment of judges of High Courts

The judges of High Court are appointed by the President. In the case of the Chief Justice of the high court, the appointment is made by the President after consulting the Chief Justice of India and the Governor of the concerned State. With respect to other judges of the high court, the President is required to consult the Chief Justice of the concerned high court. 

In the landmark case of S.P. Gupta and Others v. Union of India (1981), it was held by the Apex Court that the opinion of all the three authorities, that is, the Chief Justice of India, the concerned high courts respectively, and the Governor of the State are equally important and the opinion of one does not have primacy over the other. Furthermore, the court, while noting the examples of Australia and New Zealand, recommended the constitution of a Judicial Commission for the recommendation of the appointment of judges to the high courts.  

The Constitution (Ninety-Ninth Amendment) Act, 2014 provided for the appointment of judges on the recommendation National Judicial Appointments Commission and attempted to do away with the requirement of consulting the Chief Justice, However, in the case of Supreme Court Advocate on Record Association v. Union of India (1993), the Amendment was declared to be unconstitutional. 

Functions of a High Court

  • It controls the functioning of the subordinate courts and issues rules and guidelines for their functioning.
  • The high court hears appeals against the judgment and orders of the subordinate courts. 
  • The high court is empowered to issue writs to safeguard the fundamental rights of individuals. 
  • The high courts have the power of judicial review and can declare a law to be void if it is found to be in contravention of the provisions of the Constitution. 
  • If a matter before the subordinate court involves a substantial question of law, then the high court is empowered to withdraw the matter and hear the matter. 

Jurisdiction of a High Court

The high court exercises jurisdiction over the territorial limits of the concerned State.

  • Original jurisdiction: The high court has original jurisdiction in matters relating to the enforcement of fundamental rights, certain revenue matters and election to the State Legislature. The high court has the power to punish for its contempt under Article 215.
  • Appellate jurisdiction: The high courts have appellate jurisdiction with reference to both civil and criminal matters. Where the accused is sentenced to 7 years of imprisonment or more or to the death penalty by the sessions court, an appeal can be made before the high court. Furthermore, cases involving substantial questions of law can be appealed before the high courts.
  • Writ jurisdiction: Article 226 of the Constitution empowers the high courts to issue writs for the enforcement of the rights of individuals. It is pertinent to note that the high court can issue writs for the enforcement of fundamental as well as legal rights. 
  • Supervisory jurisdiction: Article 227 of the Constitution confers supervisory jurisdiction on the high courts. The high court exercises superintendence over all such courts and tribunals that are established within its territorial jurisdiction. 
  • Review jurisdiction: Article 226 confers the review jurisdiction on the high courts and empowers them to review their own judgments and orders. The high courts entertain a review petition when there has been material error resulting in miscarriage of justice or where there has been a flagrant procedural error. 

An appeal can be made before the high court against the order of the Sessions Judge to sentence the accused for a term exceeding 7 years. An appeal can also be made before the high court in certain cases from the order of the metropolitan or other judicial magistrates.

However, it is pertinent to note that no appeal can be made before the high court in relation to petty cases. 

Subordinate Courts

The district courts are established by the State Government. They may be established for an individual district or a group of districts. The high court is responsible for supervising the administration of the District courts. There are primarily two types of District courts:

  1. Criminal courts, and
  2. Civil courts.

The civil courts adjudicate disputes relating to matters such as agreements, rent and divorce. These cases are decided on the basis of the procedure laid down by the Code of Civil Procedure, 1908.

The criminal courts decide cases concerning the violation of law and which are filed by the state. These cases include dacoity, murder, etc. The working of the criminal codes is governed by the procedure laid down by the Code of Criminal Procedure, 1973

It is pertinent to note that the district courts while dealing with criminal matters, are referred to as session courts. 

Any person aggrieved by the order of the district court can prefer an appeal before the high court. Below the district court, there are various other subordinate courts such as the Court of Additional District Judge, Court of Judicial Magistrate of Ist Class, Court of Judicial Magistrate of IInd Class, etc. The largest number of cases are disposed of at this level. The trial and recording of evidence also take place at this level.

The land revenue matters in the state are decided by the revenue courts. The revenue courts include the courts of Tehsildar, Collector, etc. The Board of Revenue constitutes the highest revenue court.

Appointments and composition

The district courts are presided over by a district judge who is appointed by the Governor of the State. The Governor appoints the district judge after consulting the concerned high court. The Additional District Judge may also be appointed subject to the workload.

Other judicial officers are appointed by the State Public Service Commission.

Tribunal

Various special tribunals are set up by the government for dealing with specific matters such as taxes, land disputes, etc. Tribunals may be judicial or quasi-judicial. The Tribunals provide expeditious justice and are usually established when there are several pending matters relating to a particular subject matter pending before the traditional courts. Thus, these tribunals help in reducing the burden of the traditional courts.

Article 323A of the Constitution empowers the Parliament to establish Central as well as State-level administrative tribunals which adjudicate on matters relating to the recruitment and service of public servants.

Article 323B provides a list of subject matters for which the Tribunals may be established by the Union Parliament or the State Legislatures. It includes tax, labour disputes, elections, land reforms, etc. In the landmark case of Union of India v. R. Gandhi and Ors. (2010), it was held that the list of matters provided in Section 323B is not intended to restrict the legislature from establishing tribunals for adjudicating any other matters. The list is not exhaustive and the legislature can establish Tribunals pertaining to any matter provided in the Seventh Schedule.

Nyay Panchayats 

The Nyay Panchayats are established at the village level and are aimed at providing cheap and expeditious justice. They are based on the direction provided by Article 40 which states that the State must take steps to empower the panchayats. The 73rd Constitutional Amendment conferred Constitutional status on the panchayats. These Nyay Panchayats adjudicate on minor offences such as wrongful restraint or theft. While these Panchayats enjoy both civil as well as criminal jurisdiction, the pecuniary jurisdiction of these judicial constituents is very low.

The Panches are appointed by the adult people of the village itself. Furthermore, since the posts are honorary, the members do not receive any salary. The minimum age of the members of Nyay Panchayat is 30 years. 

The Ashok Mehta Committee which was constituted in 1977 made certain recommendations for the reformation of the Nyay Panchayats. It suggested that the government should form a special cadre for judges of the Nyay Panchayat. The civil jurisdiction of the Nyay Panchayats should be broadened and their criminal jurisdiction should be equivalent to a judicial magistrate of 1st class. The provisions of the Code of Civil Procedure, 1908 as well as the provision of the Indian Evidence Act, 1872 should not apply to the proceedings of a Nyay Panchayat. However, the recommendations of the Committee have not been implemented. 

Lok Adalat 

Unlike the Nyay Panchayat, the Lok Adalats do not adjudicate disputes, rather, they aim at resolving disputes through mediation and arbitration. The Lok Adalats are also known as the ‘People’s Court’. The Lok Adalats consist of judicial officers, retired and serving, and such other persons as prescribed by the Central Government.  

A statutory status was conferred on the Lok Adalats by the Legal Services Authorities Act, 1987. Chapter VI of the Act expressly deals with the organization of Lok Adalats. Section 21 of the Act provides that the award made by a Lok Adalat is deemed to be a decree of a civil court. Furthermore, such an award is binding on the parties to the dispute. 

The Lok Adalat has jurisdiction over such cases which are pending before the court for which the Adalat is convened. The parties may either agree to refer the matter to the Lok Adalat or one of the parties may apply before the Lok Adalat or the matter may be referred to the Lok Adalat by the court. Section 20 provides that a Lok Adalat while discharging its duties, must observe the principles of “justice, equity, fair play and other legal principles“.

Judicial independence and constitutional provisions

In India, there is an independent judiciary. The legislature and the executive are prevented from interfering with the judicial functions. This ensures that the judges are able to discharge their duties without any fear. 

There are several constitutional provisions which secure the judiciary’s independence. It is pertinent to note that Article 50, a Directive Principle, provides that the State shall take steps to ensure that the judiciary operates separately from the executive. There are various other constitutional safeguards which ensure the Independence of the judiciary

  • The Supreme Court has the power to appoint the judges of the Supreme Court as well as the various high courts. Article 124(2) provides that the judges of the Supreme Court are to be appointed by the President in consultation with the judges of the Supreme Court and the high court.
  • The judges of the Supreme Court, once appointed, enjoy the office until they attain the age of 65 years. Similarly, the judges of the high court enjoy the offices until they attain the age of 62 years.
  • Article 124(4) provides for the procedure of the removal of the judges of the Supreme Court. The judges of the Supreme Court can be removed only by Presidential order. The removal must be supported by a special majority of at least 2/3rd of the members present and voting. The President has to address both the Houses of Parliament and the resolution for removal must be presented to him in the same session. A judge of the Apex Court can only be removed on the grounds of incapacity or misbehaviour. 
  • So far, no judge of the Supreme Court has been impeached. Veeraswami Ramaswami was the first judge against whom the proceedings were initiated but the motion could not sail through the Lok Sabha. 
  • Furthermore, the salaries and allowances of the judges of the Supreme Court as well as the high courts cannot be reduced except when a financial emergency has been declared under Article 360
  • The salaries and allowances of the Judges of the constitutional courts are charged under the consolidated fund of India.
  • The legislature cannot deliberate upon the conduct of a judge while discharging his official duties. 
  • The Parliament as well as the State Legislatures are further barred from curtailing the jurisdiction of the court and can only extend it. 
  • Despite the aforementioned safeguards, if anyone undermines the authority of the court, then the Supreme Court, as well as the high courts, have the power to punish for contempt under Article 129 and Article 215 respectively.

Hurdles in the judicial system 

The judicial system in India is currently facing several hurdles. Some of them are:

  1. The constitutional courts, that is, the Supreme Court and the high courts are overburdened with the caseload. This results in enormous delays in justice and sometimes, litigation continues for decades.
  2. Litigation is a costly affair and in several instances, the common people are forced to forgo their rights and claims as they are unable to afford the legal proceedings. 
  3. The judiciary lacks the infrastructure to properly deal with the huge caseload. The judicial complexes are overcrowded and several Courts have a shortage of digital infrastructure. 
  4. Several British-era laws have become obsolete and need to be amended and modified or repealed. 
  5. The caseload before the subordinate courts is also huge and resultantly frequent adjournments are granted by the courts which results in delays. 
  6. The undertrial prisoners languish in jails for years while their cases are pending. 
  7. There are about 21 judges in India for 1 million people. The ratio of judges to people is very low and the need to improve this ratio was highlighted by the Law Commission in the 245th Report. The Report stated that the shortage of judges was leading to a huge backlog of cases and the issue required urgent and immediate attention. 

Conclusion

A vibrant and independent judiciary is essential for any democracy to thrive. The judiciary in India ensures that there is a rule of law and that the rights of the citizens are not violated. It also keeps a check on the other two organs of the government, that is, the legislature and the executive. 

However, the judicial system in India is facing several challenges which need to be addressed on a priority basis. There is an urgent need to address the shortage of judges and to ensure that the cases are disposed of in a timely manner. Furthermore, the judicial infrastructure and the working conditions of the trial court must be improved so as to attract talent to the judicial profession. 

Frequently Asked Questions

How many judges are there in the Supreme Court of India

The Supreme Court consists of 31 Judges including the Chief Justice.

Which High Court is the oldest High Court in India

The Calcutta High Court which was established in 1862 is the oldest high court in India. 

When was the Supreme Court established

The Supreme Court was established on 28th January 1950.

What are three judges’ cases

The three judges’ cases are three judgments in which the court elaborated on the procedure to be followed for the appointment of the Supreme Court judges. 

The first judges’ case or S.P. Gupta v. President Of India (1981) was decided in 1981 and in this case, the court held that the President has the ultimate authority to appoint the judges while giving proper consideration to the Chief Justice of India’s opinion. 

The second judges’ case or Supreme Court v. Union Of India (1993) was decided in 1993 by a 9-judge Constitutional Bench of the Supreme Court. In this case, the court held that the CJI has a key role to play in the appointment of judges and that the CJI’s concurrence is essential in the process of appointment.

In the third judges’ case, the collegium system was laid down and it was held that the President must appoint the judges on the basis of the recommendation of the collegium.

Who has been conferred with the power to remove Supreme Court judges

Under Article 124, a Supreme Court judge can be impeached by the President, provided the resolution for impeachment is approved by two-thirds of the members present and voting. 

References


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