NCERT Textbook: Judiciary - Constitutional, Civil and Criminal Courts And Processes | NCERT Books & Solutions for Humanities - Humanities/Arts PDF Download

 Page 1


,
JUDICIARY: CONSTITUTIONAL 
CIVIL AND CRIMINAL COURTS 
AND PROCESSES
Page 2


,
JUDICIARY: CONSTITUTIONAL 
CIVIL AND CRIMINAL COURTS 
AND PROCESSES
Contents
1. CONSTITUTION, ROLES AND IMPARTIALITY 165
1.1 Independence and Impartiality of the Supreme Court 168
1.2 Structure and Hierarchy of the Courts in India 170
1.3 Appointment, Retirement and Removal of Judges of High Courts 174
1.4 Appointment, Retirement and Removal of Subordinate Court Judges 175
1.5 The civil process and functioning of civil courts 175
2. THE CIVIL COURT STRUCTURE 176
2.1 Decree, Judgment and Order 176
3. STRUCTURE AND FUNCTIONING OF CRIMINAL COURTS  IN INDIA 177
3.1  The criminal process-investigation and prosecution 179
3.2 Warrant, Summons and Summary Trials 181
3.2 Bailable and non-bailable Offences 183
3.3 Anticipatory Bail 184
3.4  Cognizable and non-cognizable Offences 184
3.5  Doctrine of autrefois acquit and auterfois convict 
(i.e. previously acquitted or previously convicted) 186
3.6  Function and Role of Police 186
3.7 Criminal Investigations and First Information Report (FIR) 187
3.8 Information to the Police as to non-cognizable offence 188
4. OTHER COURTS IN INDIA 189
4.1 Family Courts 190
4.2 Administrative Tribunals 190
5. ACTIVITY 191
6. REFERENCES 191
7. QUESTIONS 191
Page 3


,
JUDICIARY: CONSTITUTIONAL 
CIVIL AND CRIMINAL COURTS 
AND PROCESSES
Contents
1. CONSTITUTION, ROLES AND IMPARTIALITY 165
1.1 Independence and Impartiality of the Supreme Court 168
1.2 Structure and Hierarchy of the Courts in India 170
1.3 Appointment, Retirement and Removal of Judges of High Courts 174
1.4 Appointment, Retirement and Removal of Subordinate Court Judges 175
1.5 The civil process and functioning of civil courts 175
2. THE CIVIL COURT STRUCTURE 176
2.1 Decree, Judgment and Order 176
3. STRUCTURE AND FUNCTIONING OF CRIMINAL COURTS  IN INDIA 177
3.1  The criminal process-investigation and prosecution 179
3.2 Warrant, Summons and Summary Trials 181
3.2 Bailable and non-bailable Offences 183
3.3 Anticipatory Bail 184
3.4  Cognizable and non-cognizable Offences 184
3.5  Doctrine of autrefois acquit and auterfois convict 
(i.e. previously acquitted or previously convicted) 186
3.6  Function and Role of Police 186
3.7 Criminal Investigations and First Information Report (FIR) 187
3.8 Information to the Police as to non-cognizable offence 188
4. OTHER COURTS IN INDIA 189
4.1 Family Courts 190
4.2 Administrative Tribunals 190
5. ACTIVITY 191
6. REFERENCES 191
7. QUESTIONS 191
165
Introduction
1. CONSTITUTION, ROLES AND IMPARTIALITY
The aim of this chapter is, in the first place, to understand the salient features of Indian judiciary, its 
Constitution, its roles and its independence.  The introduction to this topic is meant to spur thoughts 
about court structure and their functions. The Indian legal system derives its authority from the 
Constitution of India and is deeply embedded in the Indian political system. The presence of judiciary 
substantiates the theory of separation of powers wherein the other two organs, viz., legislature and 
executive stand relatively apart from it. 
Parliamentary democracy as envisaged in the Constitution of India works, at Union and State level. 
Especially in the making of law, there is direct participation of the legislature and the executive. It is 
the judiciary that safeguards the interest of citizens by not allowing the other organs to go beyond 
their role assigned in the Constitution. In brief, the Supreme Court of India is the logical and primary 
custodian of the Indian Constitution, while also being its interpreter and guardian. Parliament enjoys 
the authority to amend the Constitution; the Supreme Court has the authority to examine the validity 
of constitutional amendments. The Supreme Court ensures that the other branches of government 
perform their responsibilities in accordance with the Constitution. 
Judiciary is the final authority in interpreting legal issues and constitutional arrangements. The 
nature of democracy and development of the state depends upon how the legal system conducts 
itself to sustain the overall socio-economic and political environment.
The Judiciary, in India, today is an extension of the British Legal System. The Supreme Court is 
the apex body, followed by 24 High Courts, which in turn supervise and govern numerous District 
Courts. Article 129 of the Constitution of India makes the Supreme Court a 'court of record' and 
confers all the powers of such a court including the power to punish for its contempt as well as of 
its subordinate courts. Article 141 of the Constitution of India provides that the law declared by 
Supreme Court is binding on all courts. 
Judiciary in India plays an important role of interpreting and applying the law and adjudicating 
upon controversies between the citizens, the states and various other parties. It is the function 
of the courts to uphold the rule of law in the country and to safeguard civil and political rights. As 
India has a written constitution, courts have an additional function of safeguarding the 
supremacy of the Constitution by interpreting and applying its provisions and limiting the 
functioning of  all authorities within the constitutional framework.
UNIT 04: CHAPTER 1 
,
Judiciary: Constitutional Civil And 
Criminal Courts And Processes
Page 4


,
JUDICIARY: CONSTITUTIONAL 
CIVIL AND CRIMINAL COURTS 
AND PROCESSES
Contents
1. CONSTITUTION, ROLES AND IMPARTIALITY 165
1.1 Independence and Impartiality of the Supreme Court 168
1.2 Structure and Hierarchy of the Courts in India 170
1.3 Appointment, Retirement and Removal of Judges of High Courts 174
1.4 Appointment, Retirement and Removal of Subordinate Court Judges 175
1.5 The civil process and functioning of civil courts 175
2. THE CIVIL COURT STRUCTURE 176
2.1 Decree, Judgment and Order 176
3. STRUCTURE AND FUNCTIONING OF CRIMINAL COURTS  IN INDIA 177
3.1  The criminal process-investigation and prosecution 179
3.2 Warrant, Summons and Summary Trials 181
3.2 Bailable and non-bailable Offences 183
3.3 Anticipatory Bail 184
3.4  Cognizable and non-cognizable Offences 184
3.5  Doctrine of autrefois acquit and auterfois convict 
(i.e. previously acquitted or previously convicted) 186
3.6  Function and Role of Police 186
3.7 Criminal Investigations and First Information Report (FIR) 187
3.8 Information to the Police as to non-cognizable offence 188
4. OTHER COURTS IN INDIA 189
4.1 Family Courts 190
4.2 Administrative Tribunals 190
5. ACTIVITY 191
6. REFERENCES 191
7. QUESTIONS 191
165
Introduction
1. CONSTITUTION, ROLES AND IMPARTIALITY
The aim of this chapter is, in the first place, to understand the salient features of Indian judiciary, its 
Constitution, its roles and its independence.  The introduction to this topic is meant to spur thoughts 
about court structure and their functions. The Indian legal system derives its authority from the 
Constitution of India and is deeply embedded in the Indian political system. The presence of judiciary 
substantiates the theory of separation of powers wherein the other two organs, viz., legislature and 
executive stand relatively apart from it. 
Parliamentary democracy as envisaged in the Constitution of India works, at Union and State level. 
Especially in the making of law, there is direct participation of the legislature and the executive. It is 
the judiciary that safeguards the interest of citizens by not allowing the other organs to go beyond 
their role assigned in the Constitution. In brief, the Supreme Court of India is the logical and primary 
custodian of the Indian Constitution, while also being its interpreter and guardian. Parliament enjoys 
the authority to amend the Constitution; the Supreme Court has the authority to examine the validity 
of constitutional amendments. The Supreme Court ensures that the other branches of government 
perform their responsibilities in accordance with the Constitution. 
Judiciary is the final authority in interpreting legal issues and constitutional arrangements. The 
nature of democracy and development of the state depends upon how the legal system conducts 
itself to sustain the overall socio-economic and political environment.
The Judiciary, in India, today is an extension of the British Legal System. The Supreme Court is 
the apex body, followed by 24 High Courts, which in turn supervise and govern numerous District 
Courts. Article 129 of the Constitution of India makes the Supreme Court a 'court of record' and 
confers all the powers of such a court including the power to punish for its contempt as well as of 
its subordinate courts. Article 141 of the Constitution of India provides that the law declared by 
Supreme Court is binding on all courts. 
Judiciary in India plays an important role of interpreting and applying the law and adjudicating 
upon controversies between the citizens, the states and various other parties. It is the function 
of the courts to uphold the rule of law in the country and to safeguard civil and political rights. As 
India has a written constitution, courts have an additional function of safeguarding the 
supremacy of the Constitution by interpreting and applying its provisions and limiting the 
functioning of  all authorities within the constitutional framework.
UNIT 04: CHAPTER 1 
,
Judiciary: Constitutional Civil And 
Criminal Courts And Processes
166
In a federation [i.e. union of states], the judiciary has another meaningful assignment (legally 
known as Original Jurisdiction of the Supreme Court of India envisaged in the Constitution of 
India), namely to decide controversies between the constituent states inter se as well as 
between the Union and the States. A federal government is a legislative government, a 
characteristic feature of which is the allocation of power between the Centre and the States. 
Disputes usually arise between the governments relating to distribution of power and function 
between them. An arbiter is therefore, required to examine laws to see whether they fall within 
the allotted legislative domain of the enacting legislature and this function is usually left to the 
judiciary. In this connection, the Supreme Court of India often invoked the following principles 
of interpretation of law viz., doctrine of pith and substance, doctrine of severability and 
doctrine of colourable legislation  etc. Doctrine of pith and substance i.e., the true object of the 
legislation or a statute, relates to a matter with the competence of the legislature which 
enacted it. In order to ascertain the true character of the legislation one must have regard to the 
enactment as a whole, to its object and to the scope and effect of its provisions. Doctrine of 
severability separates repugnant provisions of a statute or law from others that are 
constitutional. The violating part of any provision of a statute is declared unconstitutional and 
void to the extent of such inconsistency, but the remainder remains enforceable and valid. 
Doctrine of colourable legislation prevents  legislatures to make laws that they would otherwise 
not be able to create given the constitutional contraints. The whole doctrine of colourable 
legislation is based upon the maxim that you cannot do indirectly what you cannot do directly. 
While the power of the Parliament to legislate is supreme, at the same time the Judiciary has 
been made the watchdog of Indian democracy. The role of the judiciary has been ever changing 
and has evolved based on the constitution of India and the socio-economic needs of the country.
The phrase 'basic structure' was introduced for the first time in the Golaknath case (Golaknath V. 
State of Punjab, AIR 1967 SC 1643), but it was only in 1973 that this phrase was used by the 
Supreme Court and it means and includes those features of the Constitution which lay at its core 
requiring much more than the usual procedures to change them. It was held in the historic 
Kesvananda Bharati case that any amendment which aims at abrogating the basic structure of 
the Constitution would be unconstitutional. Hence, every proposed amendment is subject to 
judicial scrutiny if it is aimed at abrogating the basic structure of the Constitution. 
Constituent elements of the basic structure include the supremacy of the Constitution, 
republican and democratic form of government, secular character of the Constitution, 
separation of powers between the legislature, executive and the judiciary  and primarily the 
federal character of the Constitution. In addition, the Judiciary also has the power  of judicial 
review. It implies that every piece of legislation passed by the Parliament is subject to judicial 
scrutiny by the Supreme Court of India. No specific provisions exist for this arrangement, 
however the power and extent of judicial review has been clarified through judicial 
pronouncements. 
Page 5


,
JUDICIARY: CONSTITUTIONAL 
CIVIL AND CRIMINAL COURTS 
AND PROCESSES
Contents
1. CONSTITUTION, ROLES AND IMPARTIALITY 165
1.1 Independence and Impartiality of the Supreme Court 168
1.2 Structure and Hierarchy of the Courts in India 170
1.3 Appointment, Retirement and Removal of Judges of High Courts 174
1.4 Appointment, Retirement and Removal of Subordinate Court Judges 175
1.5 The civil process and functioning of civil courts 175
2. THE CIVIL COURT STRUCTURE 176
2.1 Decree, Judgment and Order 176
3. STRUCTURE AND FUNCTIONING OF CRIMINAL COURTS  IN INDIA 177
3.1  The criminal process-investigation and prosecution 179
3.2 Warrant, Summons and Summary Trials 181
3.2 Bailable and non-bailable Offences 183
3.3 Anticipatory Bail 184
3.4  Cognizable and non-cognizable Offences 184
3.5  Doctrine of autrefois acquit and auterfois convict 
(i.e. previously acquitted or previously convicted) 186
3.6  Function and Role of Police 186
3.7 Criminal Investigations and First Information Report (FIR) 187
3.8 Information to the Police as to non-cognizable offence 188
4. OTHER COURTS IN INDIA 189
4.1 Family Courts 190
4.2 Administrative Tribunals 190
5. ACTIVITY 191
6. REFERENCES 191
7. QUESTIONS 191
165
Introduction
1. CONSTITUTION, ROLES AND IMPARTIALITY
The aim of this chapter is, in the first place, to understand the salient features of Indian judiciary, its 
Constitution, its roles and its independence.  The introduction to this topic is meant to spur thoughts 
about court structure and their functions. The Indian legal system derives its authority from the 
Constitution of India and is deeply embedded in the Indian political system. The presence of judiciary 
substantiates the theory of separation of powers wherein the other two organs, viz., legislature and 
executive stand relatively apart from it. 
Parliamentary democracy as envisaged in the Constitution of India works, at Union and State level. 
Especially in the making of law, there is direct participation of the legislature and the executive. It is 
the judiciary that safeguards the interest of citizens by not allowing the other organs to go beyond 
their role assigned in the Constitution. In brief, the Supreme Court of India is the logical and primary 
custodian of the Indian Constitution, while also being its interpreter and guardian. Parliament enjoys 
the authority to amend the Constitution; the Supreme Court has the authority to examine the validity 
of constitutional amendments. The Supreme Court ensures that the other branches of government 
perform their responsibilities in accordance with the Constitution. 
Judiciary is the final authority in interpreting legal issues and constitutional arrangements. The 
nature of democracy and development of the state depends upon how the legal system conducts 
itself to sustain the overall socio-economic and political environment.
The Judiciary, in India, today is an extension of the British Legal System. The Supreme Court is 
the apex body, followed by 24 High Courts, which in turn supervise and govern numerous District 
Courts. Article 129 of the Constitution of India makes the Supreme Court a 'court of record' and 
confers all the powers of such a court including the power to punish for its contempt as well as of 
its subordinate courts. Article 141 of the Constitution of India provides that the law declared by 
Supreme Court is binding on all courts. 
Judiciary in India plays an important role of interpreting and applying the law and adjudicating 
upon controversies between the citizens, the states and various other parties. It is the function 
of the courts to uphold the rule of law in the country and to safeguard civil and political rights. As 
India has a written constitution, courts have an additional function of safeguarding the 
supremacy of the Constitution by interpreting and applying its provisions and limiting the 
functioning of  all authorities within the constitutional framework.
UNIT 04: CHAPTER 1 
,
Judiciary: Constitutional Civil And 
Criminal Courts And Processes
166
In a federation [i.e. union of states], the judiciary has another meaningful assignment (legally 
known as Original Jurisdiction of the Supreme Court of India envisaged in the Constitution of 
India), namely to decide controversies between the constituent states inter se as well as 
between the Union and the States. A federal government is a legislative government, a 
characteristic feature of which is the allocation of power between the Centre and the States. 
Disputes usually arise between the governments relating to distribution of power and function 
between them. An arbiter is therefore, required to examine laws to see whether they fall within 
the allotted legislative domain of the enacting legislature and this function is usually left to the 
judiciary. In this connection, the Supreme Court of India often invoked the following principles 
of interpretation of law viz., doctrine of pith and substance, doctrine of severability and 
doctrine of colourable legislation  etc. Doctrine of pith and substance i.e., the true object of the 
legislation or a statute, relates to a matter with the competence of the legislature which 
enacted it. In order to ascertain the true character of the legislation one must have regard to the 
enactment as a whole, to its object and to the scope and effect of its provisions. Doctrine of 
severability separates repugnant provisions of a statute or law from others that are 
constitutional. The violating part of any provision of a statute is declared unconstitutional and 
void to the extent of such inconsistency, but the remainder remains enforceable and valid. 
Doctrine of colourable legislation prevents  legislatures to make laws that they would otherwise 
not be able to create given the constitutional contraints. The whole doctrine of colourable 
legislation is based upon the maxim that you cannot do indirectly what you cannot do directly. 
While the power of the Parliament to legislate is supreme, at the same time the Judiciary has 
been made the watchdog of Indian democracy. The role of the judiciary has been ever changing 
and has evolved based on the constitution of India and the socio-economic needs of the country.
The phrase 'basic structure' was introduced for the first time in the Golaknath case (Golaknath V. 
State of Punjab, AIR 1967 SC 1643), but it was only in 1973 that this phrase was used by the 
Supreme Court and it means and includes those features of the Constitution which lay at its core 
requiring much more than the usual procedures to change them. It was held in the historic 
Kesvananda Bharati case that any amendment which aims at abrogating the basic structure of 
the Constitution would be unconstitutional. Hence, every proposed amendment is subject to 
judicial scrutiny if it is aimed at abrogating the basic structure of the Constitution. 
Constituent elements of the basic structure include the supremacy of the Constitution, 
republican and democratic form of government, secular character of the Constitution, 
separation of powers between the legislature, executive and the judiciary  and primarily the 
federal character of the Constitution. In addition, the Judiciary also has the power  of judicial 
review. It implies that every piece of legislation passed by the Parliament is subject to judicial 
scrutiny by the Supreme Court of India. No specific provisions exist for this arrangement, 
however the power and extent of judicial review has been clarified through judicial 
pronouncements. 
167
The Supreme Court of India, thus, has the power to strike down any piece of legislation aimed at 
amending the Indian Constitution on two grounds. Firstly, if the procedure prescribed under 
Article 368 is not followed and secondly, if the amending Act seeks to violate one or more basic 
features of the Constitution. In India, in addition to the above, the Judiciary also has the 
significant function of protecting and enforcing the fundamental rights of the people 
guaranteed to them by the Constitution. The Supreme Court keeps a watch on the functions of 
the other limbs of the state as to whether they are working in accordance with the Constitution 
and other laws made by the Parliament and the State legislatures. 
Supreme Court and Judicial Review
The Supreme Court has concurrent jurisdiction with the High Courts to issue directions, orders and 
writs for enforcement of fundamental rights (Article 32 of Constitution of India). These are in the 
nature of the writs of Habeas Corpus, Mandamus, Prohibition, Certiorari and Quo Warranto. These 
writs make the Supreme Court a protector and guarantor of fundamental rights. The idea is that in case 
of violation of a law or right, the Court may issue directions for compliance with the Constitution. 
Thus, the citizens of India are secure as far as fundamental rights are concerned. The Supreme Court 
has the power  to declare a law passed by the legislature null and void if it encroaches upon the 
fundamental rights. It has exercised this power on several occasions. This shows how the Supreme 
Court has always served as the guardian of fundamental rights.
Further, the Supreme Court has also assumed additional duties under a concept called 'Public 
Interest Litigation' (PIL), under which any citizen can bring any matter of general importance to 
the general public for consideration of the Supreme Court. If the Supreme Court finds that the 
executive has been failing in due discharge of its duties, it passes the required directions to the 
concerned authorities in government. 
Appeal in Constitutional Matters: Under Article 132 (1) of the Constitution of India, an appeal 
shall lie to the Supreme Court from any judgment, decree or final order of a High Court whether 
in civil, criminal or other proceedings, if the High Court certifies under Article 134-A that the 
case involves a substantial question of law as to the interpretation of this Constitution. 
Appeal in Civil cases: Article 133 provides that an appeal shall lie to the Supreme Court from any 
judgment, decree or final order in a civil proceeding of a High Court only if High Court certifies 
under Article 134-A - (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.
Appeal in Criminal Cases: Article 134 provides that an appeal shall lie to the Supreme Court from 
any judgment, final order or sentence in a criminal proceeding of a High Court. This appeal can 
be in two ways: without a certificate of High Court and with a certificate of the High Court. An 
appeal lies without the certificate if the High Court (i) has on appeal reversed an order of 
Appellate Jurisdiction of the Supreme Court