Judiciary System in India
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The qualifications of the judges are as follows:- Under Art. 124(3) of the constitution
talk about the qualifications of judges that are:
b) He should have been at least five year a judge of a high court or of two or more
such courts in succession; or he should have been for at least 10 years an advocate of
high court or of two or more such court in succession.
Appointment of judges:
The judges of the high court are appointed by the president. The chief justice of
Supreme Court is appointed by the president with the consultation of such of judges
of the supreme and high court as he deemed necessary for the purpose. But in
appointment of the other judges the president shall always consult the chief justice of
India. He may consult he may consult such other judges of the supreme court and
high court as he may deemed necessary. It should, however be noted that the power
of the president to appoint judges is purely formal because in this matter he act on
the advice of the council of ministers. There was a apprehension that executive may
bring politics in the appointment of the judges. The Indian constitution therefore does
not leave the appointment of judges on the discretion of the executive. The executive
under this art. Is required to consult persons who are ex-hypothesis well qualified to
give proper advice in matters of appointment of judges.
Under Art. 124(2) the president, in appointment other judges of the supreme court is
bound to consult chief justice of India but in appointment the chief justice of India he
is not bound to consult anyone. The word may used in art 124 makes clear that it is
not mandatory on him to consult anyone.
The Supreme Court has original, appellate and advisory jurisdiction as well.
Original jurisdiction
Article 131 states: Original jurisdiction of the Supreme Court.—Subject to the
provisions of this Constitution, the Supreme Court shall, to the exclusion of any other
court, have original jurisdiction in any dispute—
(b) Between the Government of India and any State or States on one side and one or
more other States on the other; or
Appellate Jurisdiction
Article 132 states: Appellate jurisdiction of Supreme Court in appeals from High
Courts in certain cases
Art. 132 (1) states ‘An appeal shall lie to the Supreme Court from any judgment,
decree or final order of a High Court in the territory of India, whether in a civil,
criminal or other proceeding, if the High Court certifies under article 134A that the
case involves a substantial question of law as to the interpretation of this
Constitution.’
Art. 132 (3) states ‘Where such a certificate is given, any party in the case may appeal
to the Supreme Court on the ground that any such question as aforesaid has been
wrongly decided.’
Article133 states: Appellate jurisdiction of Supreme Court in appeals from High Courts
in regard to civil matters.
Art. 133 (1) states ‘An appeal shall lie to the Supreme Court from any judgment,
decree or final order in a civil proceeding of a High Court in the territory of India if the
High Court certifies under article 134A’.Certain preconditions are:
(a) That the case involves a substantial question of law of general importance; and
(b) That in the opinion of the High Court the said question needs to be decided by the
Supreme Court.
Art. 133 (2) states ‘Notwithstanding anything in article 132, any party appealing to the
Supreme Court under clause (1) may urge as one of the grounds in such appeal that a
substantial question of law as to the interpretation of this Constitution has been
wrongly decided.’
Art. 133 (3) states ‘notwithstanding anything in this article, no appeal shall, unless
Parliament by law otherwise provides, lie to the Supreme Court from the judgment,
decree or final order of one Judge of a High Court.’
Art. 134 (1) states ‘An appeal shall lie to the Supreme Court from any judgment, final
order or sentence in a criminal proceeding of a High Court in the territory of India if
the High Court.’
(a) The High Court has on appeal reversed an order of acquittal of an accused person
(a) The High Court has on appeal reversed an order of acquittal of an accused person
and sentenced him to death; or
(b) The High Court has withdrawn for trial before itself any case from any court
subordinate to its authority and has in such trial convicted the accused person and
sentenced him to death; or
(c) The High Court certifies under article 134A that the case is a fit one for appeal to
the Supreme Court:
Provided that an appeal under sub-clause (c) shall lie subject to such provisions as
may be made in that behalf under clause (1) of article 145 and to such conditions as
the High Court may establish or require.
Art. 134 (2) states ‘Parliament may by law confer on the Supreme Court any further
powers to entertain and hear appeals from any judgment, final order or sentence in a
criminal proceeding of a High Court in the territory of India subject to such conditions
and limitations as may be specified in such law.’
Article 136 (1) states ‘Notwithstanding anything in this Chapter, the Supreme Court
may, in its discretion, grant special leave to appeal from any judgment, decree,
determination, sentence or order in any cause or matter passed or made by any court
or tribunal in the territory of India.’
Article 136 (2) states ‘Nothing in clause (1) shall apply to any judgment, determination,
sentence or order passed or made by any court or tribunal constituted by or under
any law relating to the Armed Forces.’
Article 137 states: Review of judgments or orders by the Supreme Court.— Subject to
the provisions of any law made by Parliament or any rules made under article 145,
the made by it.
Provided that the Supreme Court may after determining the said questions of law
return any case so withdrawn together with a copy of its judgment on such questions
to the High Court from which the case has been withdrawn, and the High Court shall
on receipt thereof, proceed to dispose of the case in conformity with such judgment.’
Article 139A (2) states ‘The Supreme Court may, if it deems it expedient so to do for
the ends of justice, transfer any case, appeal or other proceedings pending before any
High Court to any other High Court.’
Article 141 states: Law declared by Supreme Court to be binding on all courts.— ‘The
law declared by the Supreme Court shall be binding on all courts within the territory
of India.’
Advisory Jurisdiction
Article 143 states: Power of President to consult Supreme Court. —
Article 143 (1) states ‘If at any time it appears to the President that a question of law
or fact has arisen, or is likely to arise, which is of such a nature and of such public
importance that it is expedient to obtain the opinion of the Supreme Court upon it, he
may refer the question to that Court for consideration and the Court may, after such
hearing as it thinks fit, report to the President its opinion thereon.’
Article 143 (2) states ‘The President may, notwithstanding anything in the proviso to
article 131, refer a dispute of the kind mentioned in the said proviso to the Supreme
Court for opinion and the Supreme Court shall, after such hearing as it thinks fit,
report to the President its opinion thereon.’
High Court
India's judicial system is made up of the Supreme Court of India at the apex of the
hierarchy for the entire country and twenty-one High Courts at the top of the
hierarchy in each State. 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, and Article 214 of the Indian Constitution
The High Courts are the principal civil courts of original jurisdiction in the state, and
can try all offences including those punishable with death.
Article 226 (1) states ‘Notwithstanding anything in article 32 every High Court shall
have power, throughout the territories in relation to which it exercises jurisdiction, to
issue to any person or authority, including in appropriate cases, any Government,
within those territories directions, orders or writs, including writs in the nature of
habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them,
for the enforcement of any of the rights conferred by Part III and for any other
purpose.’
Article 226 (2) states ‘The power conferred by clause (1) to issue directions, orders or
writs to any Government, authority or person may also be exercised by any High
Court exercising jurisdiction in relation to the territories within which the cause of
action, wholly or in part, arises for the exercise of such power, notwithstanding that
the seat of such Government or authority or the residence of such person is not
within those territories.’
Article 226 (3) states ‘Where any party against whom an interim order, whether by
way of injunction or stay or in any other manner, is made on, or in any proceedings
relating to, a petition under clause (1), without—
(a) Furnishing to such party copies of such petition and all documents in support of
the plea for such interim order; and
makes an application to the High Court for the vacation of such order and furnishes a
f h li ti t th t i h f h d h b d th
copy of such application to the party in whose favor such order has been made or the
counsel of such party, the High Court shall dispose of the application within a period
of two weeks from the date on which it is received or from the date on which the copy
of such application is so furnished, whichever is later, or where the High Court is
closed on the last day of that period, before the expiry of the next day afterwards on
which the High Court is open; and if the application is not so disposed of, the interim
order shall, on the expiry of that period, or, as the case may be, the expiry of the said
next day, stand vacated.’
Article 226 (4) states ‘The power conferred on a High Court by this article shall not be
in derogation of the power conferred on the Supreme Court by clause (2) of article 32.’
Writ jurisdiction:-
Habeas Corpus:- (Latin: You (shall) have the body) is a legal action, or writ, through
which a person can seek relief from the unlawful detention of him or herself, or of
another person. It protects the individual from harming him or herself, or from being
harmed by the judicial system. The writ of habeas corpus has historically been an
important instrument for the safeguarding of individual freedom against arbitrary
state action.
Mandamus:- simply mandamus, means "we command" in Latin, is the name of one
of the prerogative writs in the common law, and is "issued by a superior court to
compel a lower court or a government officer to perform mandatory or purely
ministerial duties correctly".
Mandamus is a judicial remedy which is in the form of an order from a superior court
to any government, subordinate court, corporation or public authority to do or
forbear from doing some specific act which that body is obliged under law to do or
refrain from doing, as the case may be, and which is in the nature of public duty and
in certain cases of a statutory duty. It cannot be issued to compel an authority to do
something against statutory provision.
Quo Warranto:- quo warranto usually arises in a civil case as a plaintiff's claim (and
thus a "cause of action" instead of a writ) that some governmental or corporate
official was not validly elected to that office or is wrongfully exercising powers beyond
(or ultra vires ) those authorized by statute or by the corporation's charter.
Certiorari:- certiorary is a legal term in Roman, English, and American law referring to
a type of writ seeking judicial review. Certiorari ("to be shown") is the present passive
infinitive of Latin certiorari, ("to show, prove or ascertain"). A writ of certiorari
currently means an order by a higher court directing a lower court, tribunal, or public
authority to send the record in a given case for review.
Prohibition and certiorari lie only against judicial and quasi-judicial bodies. They do
not lie against public authority in an executive or administrative capacity or a
legislative body.
eg s at e body.
Article 227 states: Power of superintendence over all courts by the High Court.—
Article 227 (1) states ‘Every High Court shall have superintendence over all courts and
tribunals throughout the territories in relation to which it exercises jurisdiction.’
Article 227 (2) states ‘Without prejudice to the generality of the foregoing provision,
the High Court may—
(b) Make an issue general rules and prescribe forms for regulating the practice and
proceedings of such courts; and
(c) Prescribe forms in which books, entries and accounts shall be kept by the officers
of any such courts.
Article 227 (3) states ‘The High Court may also settle tables of fees to be allowed to
the sheriff and all clerks and officers of such courts and to attorneys, advocates and
pleaders practicing therein: Provided that any rules made, forms prescribed or tables
settled under clause (2) or clause (3) shall not be inconsistent with the provision of
any law for the time being in force, and shall require the previous approval of the
Governor.
Article 227 (4) states ‘Nothing in this article shall be deemed to confer on a High Court
powers of superintendence over any court or tribunal constituted by or under any law
relating to the Armed Forces.’
Lower Courts:-
States are divided into districts (zillas), and within each a judge presides as a district
judge over civil cases. A sessions judge presides over criminal cases. The judges are
appointed by the governor in consultation with the state's high court. District courts
are subordinate to the authority of their high court.
There is a hierarchy of judicial officials below the district level. Many officials are
selected through competitive examination by the state's public service commission.
Civil cases at the sub district level are filed in munsif (sub district) courts. Lesser
criminal cases are entrusted to the courts of subordinate magistrates functioning
under the supervisory authority of a district magistrate. All magistrates are under the
supervision of the high court. At the village level, disputes are frequently resolved by
Panchayat or Lok Adalat (people's courts).
The judicial system retains substantial legitimacy in the eyes of many Indians despite
its politicization since the 1970s. In fact, as illustrated by the rise of social action
litigation in the 1980s and 1990s, many Indians turn to the courts to redress
grievances with other social and political institutions. It is frequently observed that
Indians are highly litigious, which has contributed to a growing backlog of cases.
Indeed, the Supreme Court was reported to have more than 150,000 cases pending in
1990, the high courts had some 2 million cases pending, and the lower courts had a
substantially greater backlog. Research findings in the early 1990s show that the
backlogs at levels below the Supreme Court are the result of delays in the litigation
process and the large number of decisions that are appealed and not the result of an
increase in the number of new cases filed. Coupled with public perceptions of
politicization, the growing inability of the courts to resolve disputes expeditiously
threatens to erode the remaining legitimacy of the judicial system.
Hierarchy of Courts in Criminal matters
* Supreme Court
* High Court
* Sessions Court
* Assistant Sessions Judge * Chief Metropolitan Magistrate * Chief
Judicial Magistrate
* Metropolitan Magistrate * Special Metropolitan Magistrate
Sub Divisional Judicial Magistrate
* Judicial Magistrate of * Judicial Magistrate
of
First Class Second Class
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