Judiciary
n.) That branch of government in which judicial power is vested; the system of courts of justice in a country; the judges, taken collectively; as, an independent judiciary; the senate committee on the judiciary.
To Understand the Following Concepts
Common law, Adversarial system of law, Due process of law, Public Interest Litigation, Impartiality of judges, Judicial review, Separation of powers, Division of powers, Checks and balances, Basic structure, Collegium system in appointment of judges, Impeachment.
- Supreme Court of India
- High Court District and Sub Ordinate Courts
- Civil Courts
- Criminal Courts
- Specialized Tribunals
- Service Tax
- Consumer
- Labour
A. Structure, Hierarchy of Courts, and Legal Offices In India
1. Structure & Hierarchy of Courts in India
The Constitution of India lays out the framework of the Indian judicial system. India has adopted a federal system of government which distributes the law enacting power between the Centre and the States. Yet the Constitution establishes a single integrated system of judiciary comprising of courts to administer both Central and State laws. The Supreme Court located in New Delhi is the apex court of India. It is followed by various High Courts at the state level which function for one or more number of states. The High Courts are followed by district and subordinate courts which are known as the lower courts in India. To supplement the functioning of the Courts, there exist specialised tribunals to adjudicate sector specific claims such as labour, consumer, service matter disputes.
2. Supreme Court of India
The Supreme Court of India came into being on 28 January 1950. It replaced both the Federal Court of India and the Judicial Committee of the Privy Council which were at the apex of the Indian court system, under the colonial era. The Constitution of India www.lawgiri.com 2 as it stood in 1950 envisaged a Supreme Court with a Chief Justice and 7 Judges. The Parliament was granted the power to increase the number of judges in the coming years. At present, the total strength of the Supreme Court is 31 judges including the Chief Justice of India.
3. High Courts
India consists of 24 High Courts at the state and union territory level. Each High Court has jurisdiction over a state, a union territory or a group of states and union territories. Below, the High Courts exists a hierarchy of lower courts functioning as civil courts and criminal courts as well as the specialised tribunals. The Madras High Court in Chennai, Bombay High Court in Mumbai, Calcutta High Court in Kolkata and the Allahabad High Court in Allahabad are the first four High Courts in India.
4. District and Sub-ordinate Courts
The Courts that function below the High Courts are popularly known as the lower Courts. They consist of district and sub-ordinate courts. Each state is divided into judicial districts presided over by a 'District and Sessions Judge'. The judge is known as a 'District Judge' when she/he presides over a civil case and a 'Sessions Judge' when he presides over a criminal case. The district judge is also called a 'Metropolitan Sessions Judge' when she/he is presiding over a district court in a city which is designated as a metropolitan area by the State government. District judges may be working with Additional District judges, depending upon the judicial workload.
The district judge is the highest judicial authority below a High Court judge. The District Court also holds appellate jurisdiction and supervision over all sub-ordinate Courts below it. On the Civil side, the sub-ordinate Courts below the District Court include (in ascending order) - Junior Civil Judge Court, Principal Junior Civil Judge Court, Senior Civil Judge Courts (also called sub-Courts). Sub-ordinate Courts on Criminal side (in ascending order) include- Second Class Judicial Magistrates Court, First Class Judicial Magistrate Court and Chief Judicial Magistrate Court.
Apart from the sub-ordinate Courts, Munsiff Courts also form a part of this hierarchy. They are the lowest in terms of handling matters of civil nature and function below the sub-ordinate Courts. Their pecuniary limits, meaning the Court's ability to hear matters upto a particular claim for money, are notified by respective State Governments.
Tribunals
Apart from these judicial bodies, Indian judiciary is also characterised by numerous semi-judicial bodies involved in dispute resolution. These bodies function as semi or quasi-judicial bodies because they may consist of administrative officers or judges without a legal background. Yet they function in their judicial capacity and hear relevant legal matters and settle claims between the parties.
Tribunals have been constituted under specific constitutional mandate enshrined in the Constitution of India or through legal enactments, e.g. a law passed by the legislature. Their creation aims at increasing efficiency in resolving disputes and reducing the burden on courts. Examples of some of these tribunals include: Central Administrative Tribunal (CAT) for resolving the grievances and disputes of central government employees, and State Administrative Tribunals (SAT) for state government employees; Telecom Dispute Settlement Appellate Tribunal (TDSAT) for resolving disputes in the telecom sector in India; and the National Green Tribunal (NGT) for disputes involving environmental issues. Some of these tribunals function with regulators. Regulators are specialised government agencies that oversee the law and order compliance in the relevant government sectors. For example, one of the tribunals TDSAT functions alongside the regulator, TRAI (Telecom Regulatory Authority of India) in formulating laws and policy for resolving telecom disputes in India. Therefore these tribunals complement and supplement the role of courts in maintaining law and justice in the society.
Salient Features of Indian Judiciary
India as a Common Law Jurisdiction
Taking its precedence from the British tradition of 'common law', India has adopted a similar model. Under this scheme of the common law system, the decisions, orders and judgments developed by the judges in India help in the creation and development of laws and legal principles, which becomes binding precedents for all www.lawgiri.com 4 subordinate courts in the hierarchy. Therefore, courts play a vital role in creating laws, especially where gaps in law exist, and the legislature or executive have failed to enact laws. Thus, apart from administering civil and criminal justice, courts and judges serve a vital function in the federal set up of the country.
Opposed to this model, is a concept of civil law system followed in countries such as Germany, Russia, and Continental Europe. The main difference between common and civil law is with respect to the source of law. Under common law, judiciary can make laws through judicial decisions of courts; however under civil law, only the legislature or executive has the power to create laws and rules. This salient feature of Indian judiciary in following a common law model further strengthens the role of courts in India.
Adversarial Model of Dispute Resolution
Courts in India follow the adversarial system of adjudication as opposed to the inquisitorial model followed in several civil law countries. In an adversarial model, the role of lawyers representing the party becomes vital. Lawyers of the opposing parties present their cases before a neutral judge who in turn provides a decision based on the merits of the case, as presented by the lawyers. In the inquisitorial system of law, on the other hand, judges are more pro-active in adjudicating the matter. Rather than acting as neutral judges, they have rights to inquire and probe into the matter, much like a police. Here the role of lawyers representing the party and the role of judge cumulatively becomes important in determining the manner in which a civil case or criminal trial proceeds.
Attorney General of India and Law officers in India
The discussion on the structure of Indian judiciary would remain incomplete without an explanation of law offices and officers appointed by the central and state governments in India. Certain law offices at the Union and State level exist to advise the executive wing of the government. These law officers are taken up by law officers, who derive their mandate either from the Constitution or other statutory enactments and rules. The Attorney General is the first legal officer of the country.
The Attorney General of India is appointed by the President of India under Article 76 of the Constitution, which states that he can hold the office during the pleasure of the President. The Attorney General must be a person qualified to be appointed as a Judge of the Supreme Court, possessing adequate legal practice or have served as a www.lawgiri.com 5 judge for a requisite duration as mandated by the Constitution. It is the duty of the Attorney General for India to give advice to the Government of India upon legal matters and to perform other duties of legal character as may be referred or assigned to him by the President. In the performance of his duties, he has the right to appear in the Courts. This is known as a right to audience given to the Attorney General. He may also take part in the proceedings of the Parliament without a right to vote. In discharge of his functions, the Attorney General is assisted by a Solicitor General and four Additional Solicitors General. The position of the Solicitor General and Additional Solicitors General is not recognised in the Constitution. However they are governed through rules enacted by the Parliament.
Similar to the Attorney General of India, the position of Advocate General exists at the state level. An Advocate General is a senior law officer who acts as a legal adviser to the State Government. According to Article 165 of the Constitution, Advocate General is appointed by the Governor of the respective state. The Advocate General is the chief legal advisor of the State and performs duties of a legal character including representing the State before the courts either through himself/herself or through the law officers or pleaders appointed by the State. The qualification required for appointment as an Advocate General is similar to that of a judge of a High Court. The office of an Advocate General is held during the pleasure of the Governor, who also determines the nature of remunerations for the Advocate General. Additional Advocate Generals are also appointed to assist the office of the Advocate General.