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From Wikipedia, the free encyclopedia
This article is part of a series on
Judiciary of India
Law of India
Administration[show]
Civil courts[show]
Criminal courts[show]
Executive Court[show]
Legal profession[show]
Legal education[show]
The Indian Judiciary administers a common law system of legal jurisdiction, in which customs,
precedents and legislation, all codify the law of the land. It has in part, inherited the legacy of the
legal system established by the then colonial powers and the princely states since the mid-19th
century, and has partly retained characteristics of practices from the ancient [1] and medieval times.[2]
There are various levels of judiciary in India different types of courts, each with varying powers
depending on the tier and jurisdiction bestowed upon them. They form a strict hierarchy of
importance, in line with the order of the courts in which they sit, with the Supreme Court of India at
the top, followed by High Courts of respective states with district judges sitting in District Courts and
Magistrates of Second Class and Civil Judge (Junior Division) at the bottom. Courts hear criminal
and civil cases, including disputes between individuals and the government. The judiciary is
independent of the executive and legislative branches of government according to the Constitution of
India.
Contents
[hide]
2Courts
o
2.2High courts
2.3District courts
2.4Village courts
3Issues
o
3.1Pendency of cases
3.2Judicial corruption
4Reform
o
5History
o
5.1Jury trial
6See also
7Notes
8References
9Further reading
recommended by the judiciary. However, according to some, the executive has not been diligent in
using this power to reject the names of bad candidates recommended. [12][13][14]
The collegium system has come under a fair amount of criticism.[9] Presently, by a recent order in the
Fourth Judges' Case,[15] the court has invited everyone,[16] including the public,[17][18] to suggest by midNovember 2015,[19] how to improve it, broadly along the lines of - setting up an eligibility criteria for
appointments, a permanent secratariat to help the collegium sift through material on potential
candidates, infusing more transparency into the selection process, grievance redressal and any
other suggestion not in these four categories, like transfer of judges. [20]
Earlier, one recommendation by a collegium came to be challenged in court. The court held that who
could become a judge was a matter of fact, and any person had a right to question it. But who
should become a judge was a matter of opinion and could not be questioned. As long as an effective
consultation took place within a collegium in arriving at that opinion, the content or material placed
before it to form the opinion could not be called for scrutiny in a court. [21]
Courts[edit]
Supreme Court of India[edit]
Main article: Supreme Court of India
The Supreme Court of India is the highest court of the land as established by Part V, Chapter IV of
theConstitution of India. According to it, the Supreme Court is a federal court, guardian of the
Constitution and the highest court of appeal. Articles 124 to 147 of the Constitution lay down the
composition and jurisdiction of the Court. Primarily, it is an appellate court which takes up appeals
against judgments of the High Courts of the states and territories. However, it also takes writ
petitions in cases of serious human rights violations or any petition filed under Article 32 which is the
right to constitutional remedies or if a case involves a serious issue that needs immediate resolution.
[22]
It had its inaugural sitting on 28 January 1950, the day India's constitution came into force, [23] and
since then has delivered more than 24,000 reported judgments.
The Supreme Court comprises the Chief Justice and 30 other Judges.
The proceedings of the Supreme Court are conducted in English only. Supreme Court Rules,
1966 are framed under Article 145 of the Constitution to regulate the practice and procedure of the
Supreme Court.
High courts[edit]
Main article: High courts of India
There are 25 High Courts at the State level. Article 141 of the Constitution of India mandates that
they are bound by the judgments and orders of the Supreme Court of India by precedence. These
courts have jurisdiction over a state, a union territory or a group of states and union territories. Below
the High Courts are a hierarchy of subordinate courts such as the civil courts, family courts, criminal
courts and various other district courts. High courts are instituted as constitutional courts under Part
VI, Chapter V, Article 214 of the Indian Constitution.
The High Courts are the principal civil courts of original jurisdiction in the state along with District
Courts which are subordinate to the High courts. However, High courts exercise their original civil
and criminal jurisdiction only if the courts subordinate to the high court in the state are not competent
(not authorised by law) to try such matters for lack of pecuniary, territorial jurisdiction. High courts
may also enjoy original jurisdiction in certain matters if so designated specifically in a state or
Federal law. e.g.: Company law cases are instituted only in a high court.
However, primarily the work of most High Courts consists of Appeals from lower courts and writ
petitions in terms of Article 226 of the Constitution of India. Writ Jurisdiction is also original
jurisdiction of High Court. The precise territorial jurisdiction of each High Court varies.
Judges in a high court are appointed by the President after consultation with the Chief Justice of
India, Chief Justice of High Court and the governor of the state. The number of judges in a court is
decided by dividing the average institution of main cases during the last five years by the national
average, or the average rate of disposal of main cases per judge per year in that High Court,
whichever is higher.[citation needed]
The Calcutta High Court is the oldest High Court in the country, established on 2 July 1862, whereas
theAllahabad High Court is the largest, having a sanctioned strength of judges at 160.
High courts which handle a large number of cases of a particular region, have
permanent benches (or a branch of the court) established there. For litigants of remote regions,
'circuit benches' are set up, which work for those days in a month when judges visit. [24]
District courts[edit]
Main article: District Courts of India
The District Courts of India are established by the State governments in India for every district or for
one or more districts together taking into account the number of cases, population distribution in the
district. They administer justice in India at a district level. These courts are under administrative
control of the High Court of the State to which the district concerned belongs. The decisions of
District court are subject to the appellate jurisdiction of the concerned High court. [25]
The district court is presided over by one District Judge appointed by the state Government. In
addition to the district judge there may be number of Additional District Judges and Assistant District
Judges depending on the workload. The Additional District Judge and the court presided have
equivalent jurisdiction as the District Judge and his district court.[26] The district judge is also called
"Metropolitan session judge" when he is presiding over a district court in a city which is designated
"Metropolitan area" by the state Government.[27] The district court has appellate jurisdiction over all
subordinate courts situated in the district on both civil and criminal matters. Subordinate courts, on
the civil side (in ascending order) are, Junior Civil Judge Court, Principal Junior Civil Judge Court,
Senior Civil Judge Court (also called sub-court). Subordinate courts, on the criminal side (in
ascending order) are, Second Class Judicial Magistrate Court, First Class Judicial Magistrate Court,
Chief Judicial Magistrate Court.In addition 'Family Courts" are established to deal with matrimonial
disputes alone. The Principal judge of family court is equivalent to District Judge.
Village courts[edit]
Village courts, called Lok Adalat (people's court) or Nyaya Panchayat (justice of the villages),
compose a system of alternative dispute resolution.[28]
They were recognized through the 1888 Madras Village Court Act, then developed (after 1935) in
various provinces and (after 1947) Indian states.[28] The model from the Gujarat State (with a judge
and two assessors) was used from the 1970s onwards.[28] In 1984 the Law Commission
recommended to create Nyaya Panchayats in rural areas with laymen ("having educational
attainments").[28] The 2008 Gram Nyayalayas Act have foreseen 5,000 mobile courts in the country
for judging petty civil (property cases) and criminal (up to 2 years of prison) cases. [28] However, the
Act has not been enforced properly, with only 151 functional Gram Nyayalayas in the country (as of
May 2012) against a target of 5000 such courts. [29] The major reasons behind the non-enforcement
includes financial constraints, reluctance of lawyers, police and other government officials. [29]
Issues[edit]
This section requires expansion.
(June 2012)
According to the World Bank, "although India's courts are notoriously inefficient, they at least
comprise a functioning independent judiciary"[30] A functioning judiciary is the guarantor of fairness
and a powerful weapon against corruption. But people's experiences fall far short of this ideal.
Corruption in the judiciary goes beyond the bribing of judges. Court personnel are paid off to slow
down or speed up a trial, or to make a complainant go away.
Citizens are often unaware of their rights, or resigned, after so many negative experiences, to their
fate before a corrupt court. Court efficiency is also crucial, as a serious backlog of cases creates
opportunities for demanding unscheduled payments to fast-track a case. [31]
Indian Judiciary Issues have been depicted in several films, one of them being a 2015, Marathi
film, Court.
Pendency of cases[edit]
Indian courts have millions of pending cases.[32] On an average about 20% of the sanctioned
positions for judges are vacant, whereas the annual increase in pendency is less than 2%. If the
vacancies were filled, pendencies would go down and make the justice system deliver efficiently.[33]
[34]
Traffic challans, police challans and cheque bounce cases make up nearly half of all pending
cases.[35][36]
The government has been the largest, single party litigating before the courts, and has kept adding
cases to the over-burdened courts despite losing most, and then on losing, has relentlessly taken
them to the next court,[37]much of this being avoidable, according to the Law Commission [38][39] The
vast number of cases pending in the Supreme Court as well as the other lower courts has defeated
the very purpose of the judicial system. For justice delayed, is in effect justice denied. Judiciary is no
longer attracting the best legal talent because of disparity in the income of bright young lawyers and
the emoluments of judicial officers. In order to attract persons of the right caliber to the judicial cadre,
System must improve their service conditions, particularly of the trial court judges. In recent years
scandals about lack of integrity have besmirched the reputation of the judiciary. The sub-ordinate
judiciary works in appalling conditions. Any reform undertaken must be in its totality rather than in
isolation.[40]
On 12 January 2012, a Supreme Court bench said that people's faith in judiciary was decreasing at
an alarming rate, posing a grave threat to constitutional and democratic governance of the country. It
acknowledged some of the serious problems of a large number of vacancies in trial courts,
unwillingness of lawyers to become judges, and the failure of the apex judiciary in filling vacant HC
judges posts.
It wanted to seek answers from the government on amicus curiae's suggestion that access to justice
must be made a constitutional right and consequently the executive must provide necessary
infrastructure for ensuring every citizen enjoyed this right. It also wanted the Government of India to
detail the work being done by the National Mission for Justice Delivery and Legal Reforms. [41][42][43]
There have been cases where ordinary citizens have been charged for espionage while overstaying
their visa or straying across the international land or maritime boundary and languishing in prison for
years due to the slow redressal process.[44]
To reduce pendency, 'Fast-track courts', 'Evening courts/Morning courts' were set up and have met
with mixed success so far.[45][46] 'Mobile courts' are being set up to bring 'justice at the doorsteps'[47] of
litigants of far-flung remote and backward rural areas.[48]
However, Lok Adalats an informal, alternative mechanism has been a phenomenal success in
tackling pendency, especially in pre-litigation matters, settling fresh cases before they become fullblown disputes and enter the courts.[49][50][51]
Judicial corruption[edit]
Reform[edit]
History[edit]
Jury trial[edit]
The first jury trial decided by an English jury in India happened in Madras (today Chennai) in 1665,
for which Ascentia Dawes (probably a British woman) was charged by a grand jury with the murder
of her slave girl, and a petty jury, with six Englishmen and six Portuguese, found her not guilty.
[28]
With the development of the East India Company empire in India, the jury system was
implemented inside a dual system of courts: In Presidency Towns (Calcutta, Madras, Bombay), there
were Crown Courts and in criminal cases juries had to judge British and European people (as a
privilege) and in some cases Indian people; and in the territories outside the Presidency Towns
(called "moffussil"), there were Company Courts (composed with Company officials) without jury to
judge most of the cases implying indigenous people.[28]
After the Crown Government of India (Raj) adopted the Indian Penal Code (1860) and the Indian
Code of Criminal Procedure (1861, amended in 1872, 1882, 1898), the criminal jury was obligatory
only in the High Courts of the Presidency Towns; elsewhere, it was optional and rarely used.
[28]
According sections 274 and 275 of the Code of Criminal Procedure, the jury was composed from
3 (for smaller offences judged in session courts) to 9 (for severe offences judges in High Courts)
men; and when the accused were European or American, at least half of the jurors had to be
European or American men.[28]
The jury found no place in the 1950 Indian Constitution, and it was ignored in many Indian states.
[28]
The Law Commission recommended its abolition in 1958 in its 14th Report. [28] Jury trials were
abolished in India by a very discrete process during the 1960s, finishing with the 1973 Code of
Criminal Procedure, which is still in force today.[28]
It has been argued that the 8:1 acquittal of Kawas Nanavati in K. M. Nanavati vs. State of
Maharashtra, which was overturned by higher courts on the grounds that the jury was misled by the
presiding judge and were susceptible to media and public influence, was the reason. A study by
Elisabeth Kolsky argues that many "perverse verdicts" were delivered by white juries in trial of
"European British subjects" charged with murder, assault, confinement of Indians. [28]
See also[edit]
Indian Law
Notes[edit]
References[edit]
1.
2.
3.
Jump up^ Mehta, Pratap Bhanu (2002). Hasan, Zoya; Sridharan, E.;
Sudarshan, R., eds. Article - The Inner Conflict of Constitutionalism:
Judicial Review and the 'Basic Structure' (Book - India's Kiving
Constitution: Ideas, Practices, Controversies) ((2006)Second Impression
(2002)First ed.). Delhi: Permanent Black. p. 187. ISBN 81-7824-087-4.
Retrieved 9 November 2015.
4.
5.
6.
Jump up^ Chakrabarty, Bidyut (2008). Indian Politics and Society Since
Independence: Events, Processes and Ideology (First ed.). Oxon(UK),
New York (USA): Routledge. p. 103. ISBN 978-0-415-40867-7.
Retrieved 5 November 2015.
7.
Jump up^ Sorabjee, Soli J. (1 November 2015). "A step in the Wrong
Direction". The Week. Retrieved 12 November 2015.
8.
Jump up^ Venu, M.K. (5 July 2013). "Government may drop gag clause,
wants judges to show restraint". The Hindu. Retrieved 5 November 2015.
9.
^ Jump up to:a b Hegde, Sanjay (19 October 2015). "Judging the JudgeMaker". The Hindu. Retrieved 24 October 2015.
11. ^ Jump up to:a b "Motion for removal of Mr. Justice Soumitra Sen, Judge,
Calcutta High Court" (PDF). Rajya Sabha Secretariat, New Delhi, October
2011. pp. 414419. Retrieved 4 December 2014.
12. Jump up^ Venkatesan, V. "Interview with Justice J.S. Verma, former
Chief Justice of India (The Judiciary: 'Honesty
Matters')".Frontline (Volume 25 - Issue 20 :: Sep. 27-Oct. 10, 2008).
Retrieved 8 November 2015.
13. Jump up^ Krishna Iyer, V. R. (7 August 2001). "Higher judicial
appointments - II". The Hindu. Retrieved 8 November 2015.
14. Jump up^ Thomas, K. T. (13 August 2014). "In defence of the
collegium". The Indian Express. Retrieved 8 November 2015.
15. Jump up^ WP(C)No.13/2015. "Record of Proceedings" (PDF). Supreme
Court of India. Retrieved 6 November 2015.
16. Jump up^ Sr. Adv. Manan Kumar Mishra, Chairman, B.C. I. "For sending
suggestions for the betterment of Collegium System and/or to participate
in the Joint Meeting of all the State Bar Councils, Bar Associations and
other stake holders". The Bar Council of India. Retrieved 6
November 2015.
17. Jump up^ Press Trust of India (6 November 2015). "Government seeks
public suggestions to improve collegium system". The Statesman.
Retrieved 7 November 2015.
18. Jump up^ "Suggestions for Improvement in "Collegium System" as per
Supreme Court Order dated 05.11.2015". Department of Justice, Ministry
of Law and Justice, Govt. of India. Retrieved 6 November 2015.
19. Jump up^ Praveen Garg, Jt. Secy. to G.o.I. "Public Notice" (PDF).
Department of Justice, Ministry of Law and Justice, Govt. of India.
Retrieved 6 November 2015.
20. Jump up^ WP(C) No. 13/2015. "Report filed by Ms. Pinky Anand ASG
and Arvind P. Datar on Representation/Suggestions for Improving the
Collegium" (PDF). Department of Justice, Ministry of Law and Justice,
Govt. of India. Retrieved6 November 2015.
21. Jump up^ Transferred Case(C) No. 6 of 2009 (6 July 2009). "Mahesh
Chandra Gupta v. Union of I ndia & Ors.". Supreme Court of India. 2009
(8) SCC 273: 18/59. Retrieved 7 November 2015.
22. Jump up^ Introduction to the Constitution of India Dr. Durga Das Basu
Sameer Ahmed
23. Jump up^ History. Supreme Court of India. Retrieved on 2012-07-15.
24. Jump up^ Patnaik, Jagadish K. (Ed.) (2008). Mizoram - Dimensions and
Perspectives: Society, Economy & Polity. New Delhi: Concept Publishing
Co. p. 444. ISBN 9788180695148. Retrieved 29 April 2015.
41. Jump up^ "Supreme Court chides itself, govt for judicial backlog". Times
News Network. 12 Jan 2012. Retrieved 11 January2012.
42. Jump up^ "Reforms could see disposal of cases in three years". The
Hindu. 24 June 2011. Retrieved 11 January 2012.
43. Jump up^ "Government sets up National Mission for Justice Delivery".
First Post. 2 August 2011. Retrieved 11 January 2012.
44. Jump up^ Your World: The Nowhere Man, Rupa Jha, 21 October 2012,
BBC (retr 2012 10 20) (Program link:The Nowhere Man)
45. Jump up^ Thevar, Velly (20 April 2011). "Oh, What a Terrible
Morning!". The Telegraph, Calcutta. Retrieved 28 April 2015.
46. Jump up^ Minister of Law & Justice, (Answered on
29/07/2010). "Starred Question No. 80 - Reforms in Judicial
System". Lok Sabha, Parliament of India. Retrieved 28 April 2015.
47. Jump up^ "Cutting Indias legal backlog on the move". The Express
Tribune, Pakistan. AFP. 7 August 2010. Retrieved28 April 2015.
48. Jump up^ "Punjab gets its first mobile court". The Hindu. PTI. 3 October
2007. Retrieved 28 April 2015.
49. Jump up^ "National Lok Adalat disposes 10.25 million cases". The
Times of Oman. 6 December 2014. Retrieved 28 April2015.
50. Jump up^ "Lok Adalats dispose of over 2 lakh family, labour cases". The
Deccan Herald. 29 April 2015. Retrieved 28 April2015.
51. Jump up^ "Lok adalats dispose 8.80 lakh cases". The Free Press
Journal. 16 Mar 2015. Retrieved 28 April 2015.
52. Jump up^ "India Corruption Study 2005" (PDF). Transparency
International India. Retrieved 28 April 2015.
53. Jump up^ "'My Honest And Bonafide Perception'". outlook india. 9
December 2009. Retrieved 21 January 2012.
54. Jump up^ "Six corrupt CJIs named by Prashant
Bhushan". canarytrap.in. 6 October 2010. Retrieved 21 January 2012.
55. Jump up^ "Shanti Bhushan makes news again". Bar & Bench. 11
November 2010. Retrieved 21 January 2012.
56. Jump up^ "Wrong people sometimes elevated to higher judiciary: Ex-CJI
Verma". times of india. 27 June 2011. Retrieved21 January 2012.
57. Jump up^ "Former Indian Supreme Court Justice Examines Corruption
in the Judiciary". Fair Observer. 18 November 2011. Retrieved 21
January 2012.
Further reading[edit]
[1]
Judiciary of India
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