The Indian Judiciary

Indian law refers to the system of law which operates in India. It is largely based on English common law. Various Acts introduced by the British are still in effect in modified form today. Much of contemporary Indian law shows substantial European and American influence.

History of Indian law

Ancient India represented a distinct tradition of law. India had an historically independent school of legal theory and practice. The Arthashastra ( written by Chanakya), dating from 400 BC, and the Manusmriti, from 100 AD, were influential treatises in India. Manu's central philosophy was tolerance and pluralism, and was cited across Southeast Asia.

Indian Judicial System

The three-tiered system of Indian judiciary comprises of Supreme Court (New Delhi) at its helm; High Courts standing at the head of state judicial system; Followed by district and sessions courts in the judicial districts, into which the states are divided. The lower rung of the system then comprises of courts of civil (civil judges) & criminal (judicial/metropolitan magistrates) jurisdiction.

INDIA
INDIAN JUDICIARY

SUPREME COURT

HIGH COURT

DISTRICT COURT

SUB-DIVISIONAL COURT

NYAYA PANCHAYAT/SMALL CAUSES COURT

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.

The Supreme Court

The Supreme Court of India comprises the Chief Justice and not more than 25 (30) other Judges appointed by the President of India. The proceedings of the Supreme Court are conducted in English only. The Registry of the Supreme Court is headed by the Registrar General. The Attorney General for India is appointed by the President of India under Article 76 of the Constitution. Three types of Advocates: SENIOR ADVOCATES, ADVOCATES-ON-RECORD &OTHER ADVOCATES .

The High Courts

The High Courts are generally the last court of regular appeal. Besides, for invoking writ jurisdiction, the High Courts can be approached for enforcement of other rights. It has the power to supervise the subordinate courts falling within its territorial jurisdiction. The High Courts are Courts of Record. The High Courts also exercises original jurisdiction under the Companies Act.

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.

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 awarded by 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 from orders of acquittal passed by any Court. High Court has also been conferred with Criminal Provisional Jurisdiction.

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 the similar scope of powers. The courts of specific original jurisdiction are courts of Civil Judges, of Judicial Magistrates; Small Causes courts & Courts of Metropolitan Magistrates.

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 are appointed 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, Women Protection Cell and so on

Features of the Indian Judiciary

Unified Judiciary Power of Judicial Review

Judicial Independence

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.

Source of Law Cont.

Secondary Source: a. Secondary source of law is the judgments of the Supreme Court, High Courts and some of the specialised Tribunals. b. The Constitution provides that the law declared by the Supreme Court shall be binding on all courts within India.

Criminal law
Indian Penal Code (IPC) provides a penal code for all of India including Jammu and Kashmir, where it was renamed the Ranbir Penal Code (RPC). The code applies to any offence committed by an Indian Citizen anywhere and on any Indian registered ship or aircraft. Indian Penal Code came into force in 1862 (during the British Raj) and is regularly amended, such as to include section 498-A.

Civil Procedure Code

The Civil Procedure Code (C.P.C.) regulate the functioning of 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.

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].

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 Provisions Act, 1952 Beedi and Cigar workers Act, 1974 Equal Remuneration Act, 1976 Contract Labour Act, 1970 Child Labour Act, 1986 Bonded Labour System Act, 1976

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

Types of Writs: Writ of prohibition Writ of habeas corpus Writ of certiorari Writ of mandamus Writ of quo warranto

Qualification for Appt. as Judge

Citizen of India AND High Court Judge for at least 5 years OR High Court Advocate for at least 10 years OR Distinguished 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 22

Independence of Judges
Appointment of Judges after Consulting Judges Removal by Special Majority: Very difficult Salaries and Pensions cannot be varied to their disadvantage Salaries charged on the Consolidated Fund of India Discussion of the conduct of Judges forbidden in Parliament 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 any other 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 the Constitution 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 be decided 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 subordinate court 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 one for appeal to the Supreme Court. Substantial question of law as to the interpretation 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 matter Passed 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 for opinion Question of Law or Fact: Which has arisen or likely to arise And of great public importance Court may after Hearing report to the President Court Shall after Hearing report Judges to hear: Minimum 5 No litigation Opinion 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 (Ram Janma 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 phenomenon Only 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 High Court to another Withdrawal of cases from High Court Precedent: Law declared by Supreme Court binding 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 many obsolete 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.

Are you aware that... Cont

Under the Indian Sarais Act, 1867, it is a punishable offence for inn-keepers not to offer free drinking water to passerby. Only about 40 per cent of our laws are in regular use. Independent India has till now found no conceivable use for the rest. While India badly needs efficient laws, the time spent by the law-making body on the job is unbelievably little. Parliament spends less than 0.6 per cent of a Lok Sabha day on law-making.

INTRODUCTION
India is a constitutional democracy with a parliamentary system of government, and at the heart of the system is a commitment to hold regular, free and fair elections. These elections determine the composition of the government, the membership of the two houses of parliament, the state and union territory legislative assemblies, and the Presidency and vice-presidency.

Why do we need elections?

Elections take place regularly in any democracy. There are more than one hundred countries in the world in which elections take place to choose peoples representatives. Elections are held in many countries that are not democratic. 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 people can sit together everyday and take all the decisions. But, this is not possible in any large community. Nor it is possible for everyone to have the time and knowledge to take decisions on all matters. Therefore in most democracies 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 and law making.

Independent Election Commission

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 registered to 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.

Constituencies & Reservation of Seats.

Elections refer to choosing of a Leader in India involving political mobilization and organizational complexity. The direct cost of organizing the election of 1996 was approximately Rs.5,180 million. The country has been divided into 543 Parliamentary Constituencies. The size of the constituencies are determined to create constituencies which have roughly same population.

Parliament
The Parliament consists of President, the Lok Sabha and the Rajya Sabha . Although the government is headed by PM, the Cabinet is the central decision making body of the government. Other parties can also govern along with the governing party if they have the confidence vote.

Reservation of Seats
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 reserved constituencies.

Rajya Sabha & State Assemblies The members of the Rajya Sabha are elected indirectly. The number of members per each state is in proportion to their population. 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 same manner as for the Lok Sabha

Well Learn about Parliament & functions of State & Union ministers in later units.