Textbook: Judiciary | Legal Studies for Class 12 - Humanities/Arts PDF Download

 Page 1


UNIT I
Judiciary
Learning Outcomes :
Students will be able to: 
I. trace the history of the origin and development of Indian Judicial System in India; 
II. know the structure of Judiciary in India; 
III. explain the Jurisdiction of the Supreme Court of India;
IV . explain the Jurisdiction of the High Courts;
V . understand the working of Subordinate Courts; 
VI. identify the Hierarchy of Judicial System in India;
VII. discuss the role of Tribunals in complementing and supplementing the role of judiciary in India
VIII. explain the concept of Judicial Review in India
IX. understand the scope of Judicial Review in India
A.  STRUCTURE, HIERARCHY OF COURTS, AND LEGAL 
OFFICERS 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 popularly 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.
A. I. i. Supreme Court of India
The Supreme Court of India came into being on 28 January 1950. It replaced both the Federal Court 
UNIT
1
Page 2


UNIT I
Judiciary
Learning Outcomes :
Students will be able to: 
I. trace the history of the origin and development of Indian Judicial System in India; 
II. know the structure of Judiciary in India; 
III. explain the Jurisdiction of the Supreme Court of India;
IV . explain the Jurisdiction of the High Courts;
V . understand the working of Subordinate Courts; 
VI. identify the Hierarchy of Judicial System in India;
VII. discuss the role of Tribunals in complementing and supplementing the role of judiciary in India
VIII. explain the concept of Judicial Review in India
IX. understand the scope of Judicial Review in India
A.  STRUCTURE, HIERARCHY OF COURTS, AND LEGAL 
OFFICERS 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 popularly 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.
A. I. i. Supreme Court of India
The Supreme Court of India came into being on 28 January 1950. It replaced both the Federal Court 
UNIT
1
UNIT I
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 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 34 judges 
including the Chief Justice of India.
The Supreme Court (Number of Judges) Amendment Bill, 2019
•      The Supreme Court (Number of Judges) Amendment Bill, 2019 was introduced in Lok Sab-
ha on August 5, 2019. The Bill amends the Supreme Court (Number of Judges) Act, 1956.
•      The Act fixes the maximum number of judges in the Supreme Court at 30 judges (excluding 
the Chief Justice of India). The Bill increases this number from 30 to 33.
Sources: https://prsindia.org/billtrack/the-supreme-court-number-of-judges-amendment-bill-2019
A.I.ii. High Courts
India consists of 25 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. The 
Andhra High Court and Telangana High Court are the newest high courts, established on 1 January 
2019 according to Andhra Pradesh Reorganisation Act, 2014.
A. I.iii. District and Sub-ordinate Courts
The Courts that function below the High Courts are popularly known as subordinate judiciary. They 
comprise 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 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 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, District Munsiff Courts also form a part of this hierarchy. They 
are the lowest in order of handling matters of civil nature and function below the sub-ordinate Courts. 
Usually, these are controlled by the District Courts of the respective district.
Their pecuniary limits, meaning the Court’s ability to hear matters upto a particular claim for money, 
are notified by respective State Governments. 
A.II. Salient Features of Indian Judiciary
a.  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 
Page 3


UNIT I
Judiciary
Learning Outcomes :
Students will be able to: 
I. trace the history of the origin and development of Indian Judicial System in India; 
II. know the structure of Judiciary in India; 
III. explain the Jurisdiction of the Supreme Court of India;
IV . explain the Jurisdiction of the High Courts;
V . understand the working of Subordinate Courts; 
VI. identify the Hierarchy of Judicial System in India;
VII. discuss the role of Tribunals in complementing and supplementing the role of judiciary in India
VIII. explain the concept of Judicial Review in India
IX. understand the scope of Judicial Review in India
A.  STRUCTURE, HIERARCHY OF COURTS, AND LEGAL 
OFFICERS 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 popularly 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.
A. I. i. Supreme Court of India
The Supreme Court of India came into being on 28 January 1950. It replaced both the Federal Court 
UNIT
1
UNIT I
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 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 34 judges 
including the Chief Justice of India.
The Supreme Court (Number of Judges) Amendment Bill, 2019
•      The Supreme Court (Number of Judges) Amendment Bill, 2019 was introduced in Lok Sab-
ha on August 5, 2019. The Bill amends the Supreme Court (Number of Judges) Act, 1956.
•      The Act fixes the maximum number of judges in the Supreme Court at 30 judges (excluding 
the Chief Justice of India). The Bill increases this number from 30 to 33.
Sources: https://prsindia.org/billtrack/the-supreme-court-number-of-judges-amendment-bill-2019
A.I.ii. High Courts
India consists of 25 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. The 
Andhra High Court and Telangana High Court are the newest high courts, established on 1 January 
2019 according to Andhra Pradesh Reorganisation Act, 2014.
A. I.iii. District and Sub-ordinate Courts
The Courts that function below the High Courts are popularly known as subordinate judiciary. They 
comprise 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 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 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, District Munsiff Courts also form a part of this hierarchy. They 
are the lowest in order of handling matters of civil nature and function below the sub-ordinate Courts. 
Usually, these are controlled by the District Courts of the respective district.
Their pecuniary limits, meaning the Court’s ability to hear matters upto a particular claim for money, 
are notified by respective State Governments. 
A.II. Salient Features of Indian Judiciary
a.  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 
5
UNIT I
developed by the judges in India help in the creation and development of laws and legal 
principles, which becomes binding precedents for all 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.
b.  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.
Page 4


UNIT I
Judiciary
Learning Outcomes :
Students will be able to: 
I. trace the history of the origin and development of Indian Judicial System in India; 
II. know the structure of Judiciary in India; 
III. explain the Jurisdiction of the Supreme Court of India;
IV . explain the Jurisdiction of the High Courts;
V . understand the working of Subordinate Courts; 
VI. identify the Hierarchy of Judicial System in India;
VII. discuss the role of Tribunals in complementing and supplementing the role of judiciary in India
VIII. explain the concept of Judicial Review in India
IX. understand the scope of Judicial Review in India
A.  STRUCTURE, HIERARCHY OF COURTS, AND LEGAL 
OFFICERS 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 popularly 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.
A. I. i. Supreme Court of India
The Supreme Court of India came into being on 28 January 1950. It replaced both the Federal Court 
UNIT
1
UNIT I
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 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 34 judges 
including the Chief Justice of India.
The Supreme Court (Number of Judges) Amendment Bill, 2019
•      The Supreme Court (Number of Judges) Amendment Bill, 2019 was introduced in Lok Sab-
ha on August 5, 2019. The Bill amends the Supreme Court (Number of Judges) Act, 1956.
•      The Act fixes the maximum number of judges in the Supreme Court at 30 judges (excluding 
the Chief Justice of India). The Bill increases this number from 30 to 33.
Sources: https://prsindia.org/billtrack/the-supreme-court-number-of-judges-amendment-bill-2019
A.I.ii. High Courts
India consists of 25 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. The 
Andhra High Court and Telangana High Court are the newest high courts, established on 1 January 
2019 according to Andhra Pradesh Reorganisation Act, 2014.
A. I.iii. District and Sub-ordinate Courts
The Courts that function below the High Courts are popularly known as subordinate judiciary. They 
comprise 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 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 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, District Munsiff Courts also form a part of this hierarchy. They 
are the lowest in order of handling matters of civil nature and function below the sub-ordinate Courts. 
Usually, these are controlled by the District Courts of the respective district.
Their pecuniary limits, meaning the Court’s ability to hear matters upto a particular claim for money, 
are notified by respective State Governments. 
A.II. Salient Features of Indian Judiciary
a.  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 
5
UNIT I
developed by the judges in India help in the creation and development of laws and legal 
principles, which becomes binding precedents for all 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.
b.  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.
UNIT I
6
A.III.  Legal officers in India
Certain legal offices at the Union and State level exist to advise the executive wing of the government. 
These law officers derive their mandate either from the Constitution or other statutory enactments 
and rules. 
a.  Attorney General of India
 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 judge for a requisite duration as mandated by the Constitution. The first 
Attorney General of India was M. C. Setalvad.
 Attorney General gives advice to the Government of India upon such legal matters, which 
are referred or assigned to him by the president. Also, he performs such other duties of a legal 
character that are referred or assigned to him by the president or conferred on him by or under 
the Constitution or any other law.
 In the performance of his official duties, he has the right to audience in all courts in the territory 
of India. He has the right to speak or to take part in the proceedings of both the Houses of 
Parliament and their joint sittings but without a right to vote.  He has the right to speak or to 
take part in the meeting of any committee of the Parliament of which he is named as a member 
but without a right to vote. He enjoys all the privileges and immunities that are available to a 
member of parliament.
 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.
b.  Advocate General
 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.
B.  CONSTITUTION, ROLES AND IMPARTIALITY
The judiciary in India derives its powers and functions from the Constitution, which till date remains 
the fundamental legal text for the functioning of Indian democracy.
B.I.i  Independence of Judiciary as a Constitutional Safeguard
Article 50 of the Indian Constitution lays the rule of independence of judiciary. This is understood as 
judiciary’s autonomous status, separate from the executive or legislative wings of the government. 
Independence of judiciary helps in the maintenance of rule of law, ensuring good governance and 
creating a free and fair society. The independent status of the judiciary and roles to be performed by 
it; can be understood as two sides of the same coin. In this context, one must understand the reasons 
for granting a special status to the judiciary:
Page 5


UNIT I
Judiciary
Learning Outcomes :
Students will be able to: 
I. trace the history of the origin and development of Indian Judicial System in India; 
II. know the structure of Judiciary in India; 
III. explain the Jurisdiction of the Supreme Court of India;
IV . explain the Jurisdiction of the High Courts;
V . understand the working of Subordinate Courts; 
VI. identify the Hierarchy of Judicial System in India;
VII. discuss the role of Tribunals in complementing and supplementing the role of judiciary in India
VIII. explain the concept of Judicial Review in India
IX. understand the scope of Judicial Review in India
A.  STRUCTURE, HIERARCHY OF COURTS, AND LEGAL 
OFFICERS 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 popularly 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.
A. I. i. Supreme Court of India
The Supreme Court of India came into being on 28 January 1950. It replaced both the Federal Court 
UNIT
1
UNIT I
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 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 34 judges 
including the Chief Justice of India.
The Supreme Court (Number of Judges) Amendment Bill, 2019
•      The Supreme Court (Number of Judges) Amendment Bill, 2019 was introduced in Lok Sab-
ha on August 5, 2019. The Bill amends the Supreme Court (Number of Judges) Act, 1956.
•      The Act fixes the maximum number of judges in the Supreme Court at 30 judges (excluding 
the Chief Justice of India). The Bill increases this number from 30 to 33.
Sources: https://prsindia.org/billtrack/the-supreme-court-number-of-judges-amendment-bill-2019
A.I.ii. High Courts
India consists of 25 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. The 
Andhra High Court and Telangana High Court are the newest high courts, established on 1 January 
2019 according to Andhra Pradesh Reorganisation Act, 2014.
A. I.iii. District and Sub-ordinate Courts
The Courts that function below the High Courts are popularly known as subordinate judiciary. They 
comprise 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 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 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, District Munsiff Courts also form a part of this hierarchy. They 
are the lowest in order of handling matters of civil nature and function below the sub-ordinate Courts. 
Usually, these are controlled by the District Courts of the respective district.
Their pecuniary limits, meaning the Court’s ability to hear matters upto a particular claim for money, 
are notified by respective State Governments. 
A.II. Salient Features of Indian Judiciary
a.  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 
5
UNIT I
developed by the judges in India help in the creation and development of laws and legal 
principles, which becomes binding precedents for all 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.
b.  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.
UNIT I
6
A.III.  Legal officers in India
Certain legal offices at the Union and State level exist to advise the executive wing of the government. 
These law officers derive their mandate either from the Constitution or other statutory enactments 
and rules. 
a.  Attorney General of India
 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 judge for a requisite duration as mandated by the Constitution. The first 
Attorney General of India was M. C. Setalvad.
 Attorney General gives advice to the Government of India upon such legal matters, which 
are referred or assigned to him by the president. Also, he performs such other duties of a legal 
character that are referred or assigned to him by the president or conferred on him by or under 
the Constitution or any other law.
 In the performance of his official duties, he has the right to audience in all courts in the territory 
of India. He has the right to speak or to take part in the proceedings of both the Houses of 
Parliament and their joint sittings but without a right to vote.  He has the right to speak or to 
take part in the meeting of any committee of the Parliament of which he is named as a member 
but without a right to vote. He enjoys all the privileges and immunities that are available to a 
member of parliament.
 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.
b.  Advocate General
 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.
B.  CONSTITUTION, ROLES AND IMPARTIALITY
The judiciary in India derives its powers and functions from the Constitution, which till date remains 
the fundamental legal text for the functioning of Indian democracy.
B.I.i  Independence of Judiciary as a Constitutional Safeguard
Article 50 of the Indian Constitution lays the rule of independence of judiciary. This is understood as 
judiciary’s autonomous status, separate from the executive or legislative wings of the government. 
Independence of judiciary helps in the maintenance of rule of law, ensuring good governance and 
creating a free and fair society. The independent status of the judiciary and roles to be performed by 
it; can be understood as two sides of the same coin. In this context, one must understand the reasons 
for granting a special status to the judiciary:
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UNIT I
First, Judiciary’s independence is linked to its role as the watch-dog in a democracy. It monitors and 
maintains the checks and balances over the other arms of the government. Thus judiciary emerges 
as a mediator when any organ of the government exercises ‘excess power’ which tends to violate the 
larger societal or individual interest. 
For instance, the Indian Police has extensive powers for crime detection and gathering evidence 
for prosecution of criminals. It is common for the police to interrogate suspect criminals in-order to 
gather the best evidence of the crime. However such powers should not impinge upon the rights of 
the accused or the suspected criminal. An accused cannot be coerced into giving statement pointing 
to his/her guilt. This right has been constitutionally guaranteed to the accused under Article 20(3) of 
the Constitution, which states: “No person accused of any offence shall be compelled to be a witness 
against himself”. Judiciary steps in when such delicate interests are at loggerheads. Similarly, when 
there is a thin line of difference as in case of a police exercising their power to gather witness, in the 
exercise of the ‘legitimate’ and ‘excess’ right of a state organ, the role of judiciary becomes vital.
Second, in-order to ensure that constitutionally guaranteed freedoms such as freedom to speak in 
public or peacefully assemble, are interpreted as per the true constitutional philosophy, judiciary has 
been kept free from any external pressures. This is particularly useful when judiciary is interpreting a 
case of conflict between say between the government (political party in power) and certain protesting 
people of the civil society who have peacefully articulate their opinions on social issues for example, 
crime against women.
Third, Judiciary acts as a guardian of fundamental rights which are constitutionally granted to every 
citizen in India. Independence of judiciary was carved out during the formation of Indian Constitution 
as India was transitioning from a feudal to a democratic order. It was done to fully translate the well-
knit provisions of extensive rights guaranteed under the Constitution into the lives of average citizens. 
Our Constitution grants us unique rights such as:
•      Civil and political rights- e.g. the right to life; right to freedom of discrimination based on religion, 
race, caste, sex or place of birth.
•      Economic, social and cultural rights- e.g. freedom to practice any religion; protection of interests 
of minorities.
An independent and impartial Judiciary has empowered Indian citizens and performed this role. 
Illustratively, one may look into the role of Court in giving an expanded meaning to Article 21 of the 
Indian Constitution which talks about a general right to life and personal liberty. For example, within 
this freedom, the Supreme Court has held that a street vendor has a right to operate on streets as 
selling products on street is linked to his livelihood and daily living which is protected under Article 21. 
Similarly, the Supreme Court has also stated that those who are aged, disabled and destitute in India 
including men and women have a right to food, which is most essential for their survival. State has a 
corresponding duty to provide them with food. This right has been read into the general right under 
Article 21. Therefore, the Court is performing the role which it was granted at the time of the drafting 
of Indian constitution. Even though the drafters did not include specific rights such as livelihood and 
food, within the constitutional ambit of enforceable fundamental rights, they are now made available 
to the citizens of India as matters of rights. This has been possible only by the interpretation and rule 
making function of the courts in India.
Fourthly, Independence of judiciary is vital for the respect of due-process of law. Due process of 
law means that the State must respect all the legal rights that are owed to a person and confirm to 
the norms of fairness, liberty, fundamental rights etc. Only an independent judiciary can make this 
concept operational. In the domain of criminal law as well, independence of judiciary is linked to the 
granting of a fair trial to the accused. This becomes extremely important even when the accused are 
foreign nationals or persons who have committed crimes against the state, e.g. terrorists.
Therefore independence of judiciary remains a vital and core principle even in the modern democracy.
B.I.ii Provisions relating to the judges
Independence of judges is crucial to ensuring independence of judiciary. The following legal provisions