Theoretical overview
The judiciary is the branch of government that deals with interpretation of a nation’s laws, resolution of legal conflicts, and judgments for violations of the law. The judiciary, also known as the judicial system, is composed of judges and courts. The judicial system is deliberately kept separate from the nation’s legislative body, such as a parliament or congress, which creates or abolishes the nation’s laws as part of the political process. Attorneys are specialists who study the law in order to help clients navigate the judicial system. Legal systems of various kinds have existed since the dawn of civilization. Precedents of the modern judicial system include ancient Greek and Roman law and the law speakers of medieval Scandinavia. English common law established by the Magna Carta is the most direct ancestor of many current legal systems. France’s Napoleonic Code was also influential in replacing local customs with a set system of laws and courts. By the 18th century, many countries around the world had developed some form of a judiciary. In many nations, the law is established by a constitution or similar document created when the nation was founded. The legislative body then creates further laws that are intended to carry the spirit of the constitution into specific situations. For this reason, judges must be extremely well versed in the laws of the nation. Most begin their careers as attorneys before moving on to the judicial bench. The judiciary is best known for its administration of criminal court cases. Anyone caught violating a law must eventually face a judge, who will determine whether the violation occurred, the severity of the offense, and the penalty. Judges are aided in this process by their understanding of the law, their own interpretation of its meaning, and in some cases by a jury or a panel of fellow judges. The majority of court cases, however, involve civil law, such as trademark or copyright violations, bankruptcy, or individual lawsuits.
Formation of Judiciary
After the French Revolution, lawmakers stopped interpretation of law by judges, and the legislature was the only body permitted to interpret the law; this prohibition was later overturned by the Code Napoleon. In civil law jurisdictions at present, judges interpret the law to about the same extent as in common law jurisdictions however it is different than the common law tradition which directly recognizes the limited power to make law. For instance, in France, the jurisprudence constant of the Court of Cassation or the Council of State is equivalent in practice with case law. However, the Louisiana Supreme Court notes the principal difference between the two legal doctrines: a single court decision can provide sufficient foundation for the common law doctrine of stare decisis, however, “a series of adjudicated cases, all in accord, form the basis for jurisprudence constant.” Indian judiciary is a single integrated 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.
Modern judiciary in India
With the advent of the British colonial administration, India witnessed a judicial system introduced on the basis of Anglo-Saxon jurisprudence. The Royal Charter of Charles II of the year 1661 gave the Governor and Council the power to adjudicate both civil and criminal cases according to the laws of England. However, the Regulating Act of 1773 established for the first time the Supreme Court of India in Calcutta, consisting of the Chief Justice and three judges (later reduced to two) appointed by the Crown acting as King’s court and not East India Company’s court. Later, Supreme Courts were established in Madras and Bombay. The Court held jurisdiction over “His Majesty’s subjects”. In this period the judicial system had two distinct systems of courts, the English system of Royal Courts, which followed the English law and procedure in the presidencies and the Indian system of Adalat courts, which followed the Regulation laws and Personal laws in the provinces. Under the High Court Act of 1861, these two systems were merged, replacing the Supreme Courts and the native courts (Sadr Dewani Adalat and Sadr Nizamat Adalat) in the presidency towns of Calcutta, Bombay and Madras with High Courts. However, the highest court of appeal was the judicial committee of the Privy Council. British efforts were made to develop the Indian legal system as a unified court system. Indians had neither laws nor courts of their own, and both the courts and laws had been designed to meet the needs of the colonial power. The Government of India Act of 1935 set up the Federal Court of India to act as an intermediate appellant between High courts and the Privy Council in regard to matters involving the interpretation of the Indian Constitution. It was not to ‘pronounce any judgment other than a declaratory judgment’ which meant that it could declare what the law was but did not have authority to exact compliance with its decisions. The Federal Court’s power of ‘judicial review’ was largely a paper work and therefore a body with very limited power. Despite the restrictions placed on it, the Federal Court continued to function till 26th January 1950, when independent India’s Constitution came into force. In the meantime, the Constituent Assembly became busy drafting the basic framework of the legal system and judiciary.
Structure of Judiciary
Under our 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. Judiciary Structure in India
- Supreme Court of India
- High Court (in each of the states)
- District & Session Judges’ Court (In Districts)
- Subordinate Judges’ Court (Civil)
- Munsiffs’ Courts
- Nyaya Panchayats
- Provincial small cause court
- Court of Session (Criminal)
- Subordinate Magistrates’ Courts
- Judicial Magistrates • Executive Magistrates
- Panchayat Adalat
- Metropolitan Magistrate’s Court (In Metropolitan areas)
- City Civil and Session Courts Presidency small cause court
Practice and Procedure:
The influence of the British Judicial System continues in significant aspects. The official language for Court proceedings in the High Court & the Supreme Court is English. Lawyers don a gown and a band as part of their uniform and Judges are addressed as “My Lord”. The procedural law of the land as well as most commercial and corporate laws is modeled on English laws. English case law is often referred to and relied upon both by lawyers and judges. As in England, a certain class of litigation lawyers is designated as “Senior Advocates”
Supreme court:
The Supreme Court is the highest court of law in India. It has appellate jurisdiction over the
high court’s and is the highest tribunal of the land. The law declared by the Supreme Court is
binding on all small courts within the territory of India. It has the final authority to interpret
the Constitution. Thus, independence and integrity, the powers and functions and judicial
review are the issues of utmost importance concerned with the Supreme Court
The Supreme Court is the highest court of law in India. It has appellate jurisdiction over the high court’s and is the highest tribunal of the land. The law declared by the Supreme Court is binding on all small courts within the territory of India. It has the final authority to interpret the Constitution. Thus, independence and integrity, the powers and functions and judicial review are the issues of utmost importance concerned with the Supreme Court.
Composition and Appointments
The Supreme Court consists of the Chief Justice of India and not more than twenty- five other judges. There can be ad hoc judges for a temporary period due to lack of quorum of the permanent judges. However, Parliament has the power to make laws regulating the constitution, organization, jurisdiction and powers of the Supreme Court. The Constitution makes it clear that the President shall appoint the Chief Justice of India after consultation with such judges of the Supreme Court and of High Courts as he may deem necessary. And in the case of the appointment of other judges of the Supreme Court, consultation with the Chief Justice, in addition to judges is obligatory.
A person shall not be qualified for appointment as a judge of the Supreme Court unless he is:
a) a citizen of India, and
i) a distinguished jurist; or
ii) has been a High Court judge for at least 5 years, or
iii) has been an Advocate of a High Court for at least 10 years.
Once appointed, a judge holds office until he attains 65 years of age. He may resign his office by writing addressed to the President or he may be removed by the President upon an address to that effect being passed by a special majority of each House of the Parliament on grounds of ‘proved misbehavior’ and ‘incapacity’. The salaries and allowances of the judges are fixed high in order to secure their independence, efficiency and impartiality. The Constitution also provides that the salaries of the judges cannot be changed to their disadvantage, except in times of a financial emergency. The administrative expenses of the Supreme Court, the salaries, allowances, etc, of the judges are charged on the Consolidated Fund of India.
High court:
High Courts There shall be High Court for each state (Article 214), and every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself (Article 215). However, Parliament may, by law, establish a common High Court for two or more states and a Union Territory (Article 231). Every High Court shall consist of a Chief Justice and such other judges as the President may from time to time deem it necessary to appoint. Provisions for additional judges and acting judges being appointed by the President are also given in the Constitution. The President, while appointing the judges shall consult the Chief Justice of India, the Governor of the State and also the Chief Justice of that High Court in the matter of appointment of a judge other than the Chief Justice. A judge of a High Court shall hold office until the age of 62 years. A judge can vacate the seat by resigning, by being appointed a judge of the Supreme Court or by being transferred to any other High Court by the President. A judge can be removed by the President on grounds of misbehavior or incapacity in the same manner in which a judge of the Supreme Court is removed.
Subordinate Courts
The hierarchies 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 organizational structure. 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 II class, Court of Special Judicial Magistrate of I class, Court of Special Munsiff Magistrate for Factories Act and labour laws, etc. Below the subordinate courts, at the grass root levels 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.
Overall, Indian legal development since the arrival of the British displays increasing
rationalization and professionalization—a trend accentuated in independent India. The law is
universal in coverage, technically complex, administered by a sizable group of trained
professionals, and applied through a unified hierarchy of agencies. Unlike the pre-British
systems, it is designed to enforce local conformity to national standards. Yet the price of
complexity and hierarchic unity is to make law remote from popular understanding. The
system of legal ideas and institutions is now so complex as to supply ample occasion for
slippage and opportunity for manipulation, so that uniformity in doctrine and unity in formal
structure coexist with diverse practices that diverge from the prescriptions of the formal law
conclusion
Overall, Indian legal development since the arrival of the British displays increasing rationalization and professionalization—a trend accentuated in independent India. The law is universal in coverage, technically complex, administered by a sizable group of trained professionals, and applied through a unified hierarchy of agencies. Unlike the pre-British systems, it is designed to enforce local conformity to national standards. Yet the price of complexity and hierarchic unity is to make law remote from popular understanding. The system of legal ideas and institutions is now so complex as to supply ample occasion for slippage and opportunity for manipulation, so that uniformity in doctrine and unity in formal structure coexist with diverse practices that diverge from the prescriptions of the formal law.
