Legal System and Judiciary - Article, class, CBSE, NCERT UPSC Notes | EduRev

UPSC : Legal System and Judiciary - Article, class, CBSE, NCERT UPSC Notes | EduRev

 Page 1


2
UNIT 10LEGAL SYSTEM AND JUDICIARY
Structure
10.1 Introduction
10.2 Genesis of Judiciary in India
10.2.1 Modern Judiciary in India
10.2.2 Constituent Assembly: the Background
10.3 Structure of Judiciary
10.3.1 The Supreme Court
10.3.1.1 Composition and Appointments
10.3.2.2 Jurisdiction of the Supreme Court
10.3.2 High Courts
10.3.2.1 Jurisdiction of High Courts
10.3.3 Subordinate Courts
10.4 Judicial Review and Public Interest Litigation (PIL)
10.5 Judicial Reforms-Agenda
10.6 Summary
10.7 Exercises
10.1 INTRODUCTION
Modern nation-state functions through a set of institutions. Parliament, the judiciary, executive
apparatus such as bureaucracy and the police, and the formal structures of union -state
relations as well as the electoral system are the set of institutions constituted by the idea of
constitutionalism.  Their arrangements, dependencies and inter-dependencies are directly shaped
by the meta politico-legal document- i.e., Constitution.
The legal system derives its authority from the Constitution and is deeply embedded in the
political system; the presence of judiciary substantiates the theory of separation of power
wherein the other two organs, viz. legislature and executive stand relatively apart from it.
Parliamentary democracy works on the principle of ‘fusion of power,’ and in the making of
law, there is direct participation of the legislature and the executive, it is the judiciary that
remains independent and strong safeguarding the interests of the citizens by not allowing the
other organs to go beyond the Constitution.  It acts, therefore, as a check on the arbitrariness
and unconstitutionality of the legislature and the executive. Judiciary is the final arbiter in
interpreting constitutional arrangements. It is in fact the guardian and conscience keeper of the
normative values that are ‘authoritatively allocated by the state.’ The nature of the democracy
and development depends much on how the legal system conducts itself to sustain the overall
socio-economic and political environment.
10.2  GENESIS OF JUDICIARY IN INDIA
Indian judiciary is a single integrated system of courts for the union as well as the states, which
administers both the union and state laws, and at the head of the entire system stands the
Supreme Court of India. The development of the judicial system can be traced to the growth
Page 2


2
UNIT 10LEGAL SYSTEM AND JUDICIARY
Structure
10.1 Introduction
10.2 Genesis of Judiciary in India
10.2.1 Modern Judiciary in India
10.2.2 Constituent Assembly: the Background
10.3 Structure of Judiciary
10.3.1 The Supreme Court
10.3.1.1 Composition and Appointments
10.3.2.2 Jurisdiction of the Supreme Court
10.3.2 High Courts
10.3.2.1 Jurisdiction of High Courts
10.3.3 Subordinate Courts
10.4 Judicial Review and Public Interest Litigation (PIL)
10.5 Judicial Reforms-Agenda
10.6 Summary
10.7 Exercises
10.1 INTRODUCTION
Modern nation-state functions through a set of institutions. Parliament, the judiciary, executive
apparatus such as bureaucracy and the police, and the formal structures of union -state
relations as well as the electoral system are the set of institutions constituted by the idea of
constitutionalism.  Their arrangements, dependencies and inter-dependencies are directly shaped
by the meta politico-legal document- i.e., Constitution.
The legal system derives its authority from the Constitution and is deeply embedded in the
political system; the presence of judiciary substantiates the theory of separation of power
wherein the other two organs, viz. legislature and executive stand relatively apart from it.
Parliamentary democracy works on the principle of ‘fusion of power,’ and in the making of
law, there is direct participation of the legislature and the executive, it is the judiciary that
remains independent and strong safeguarding the interests of the citizens by not allowing the
other organs to go beyond the Constitution.  It acts, therefore, as a check on the arbitrariness
and unconstitutionality of the legislature and the executive. Judiciary is the final arbiter in
interpreting constitutional arrangements. It is in fact the guardian and conscience keeper of the
normative values that are ‘authoritatively allocated by the state.’ The nature of the democracy
and development depends much on how the legal system conducts itself to sustain the overall
socio-economic and political environment.
10.2  GENESIS OF JUDICIARY IN INDIA
Indian judiciary is a single integrated system of courts for the union as well as the states, which
administers both the union and state laws, and at the head of the entire system stands the
Supreme Court of India. The development of the judicial system can be traced to the growth
3
of modern-nation states and constitutionalism.
During ancient times, the concept of justice was inextricably linked with religion and was
embedded in the ascriptive norms of socially stratified caste groups. Caste panchayats performed
the role of judiciary at the local level, which was tied up with the religious laws made by the
monarchs. Most of the Kings’ courts dispensed justice according to ‘dharma’, a set of eternal
laws rested upon the individual duty to be performed in four stages of life (ashrama) and
status of the individual according to his status (varna). The King’s power to make laws
depended on the religious texts and the King had virtually no power to legislate ‘on his own
initiative and pleasure’. Ancient state laws were largely customary laws and any deviation from
it or contradiction from dharma was rejected by the community.
In medieval times, the dictum ‘King can do no wrong’ was applied and the King arrogated
to himself an important role in administering justice. He became the apostle of justice and so
the highest judge in the kingdom. Perhaps, the theory of institutionalism guided justice, manifesting
gross arbitrariness and authoritarianism.
10.2.1  Modern Judiciary in India
With the advent of the British colonial administration, India witnessed a judicial system introduced
on the basis of Anglo-Saxon jurisprudence. The Royal Charter of Charles II of the year 1661
gave the Governor and Council the power to adjudicate both civil and criminal cases according
to the laws of England. However, the Regulating Act of 1773 established for the first time the
Supreme Court of India in Calcutta, consisting of the Chief Justice and three judges (later
reduced to two) appointed by the Crown acting as King’s court and not East India Company’s
court. Later, Supreme Courts were established in Madras and Bombay. The Court held
jurisdiction over “His Majesty’s subjects”. In this period the judicial system had two distinct
systems of courts, the English system of Royal Courts, which followed the English law and
procedure in the presidencies and the Indian system of Adalat/Sadr courts, which followed the
Regulation laws and Personal laws in the provinces. Under the High Court Act of 1861, these
two systems were merged, replacing the Supreme Courts and the native courts (Sadr Dewani
Adalat and Sadr Nizamat Adalat) in the presidency towns of Calcutta, Bombay and Madras
with High Courts. However, the highest court of appeal was the judicial committee of the Privy
Council. British efforts were made to develop the Indian legal system as a unified court
system. Indians had neither laws nor courts of their own, and both the courts and laws had
been designed to meet the needs of the colonial power.
The Government of India Act of 1935 (section 200) set up the Federal Court of India to act
as an intermediate appellant between High courts and the Privy Council in regard to matters
involving the interpretation of the Indian Constitution. It was not to ‘pronounce any judgement
other than a declaratory judgement’ which meant that it could declare what the law was but
did not have authority to exact compliance with its decisions. The Federal Court’s power of
‘judicial review’ was largely a paper work and therefore a body with very limited power.
Despite the restrictions placed on it, the Federal Court continued to function till 26th January
1950, when independent India’s Constitution came into force. In the meantime, the Constituent
Assembly became busy drafting the basic framework of the legal system and judiciary.
Page 3


2
UNIT 10LEGAL SYSTEM AND JUDICIARY
Structure
10.1 Introduction
10.2 Genesis of Judiciary in India
10.2.1 Modern Judiciary in India
10.2.2 Constituent Assembly: the Background
10.3 Structure of Judiciary
10.3.1 The Supreme Court
10.3.1.1 Composition and Appointments
10.3.2.2 Jurisdiction of the Supreme Court
10.3.2 High Courts
10.3.2.1 Jurisdiction of High Courts
10.3.3 Subordinate Courts
10.4 Judicial Review and Public Interest Litigation (PIL)
10.5 Judicial Reforms-Agenda
10.6 Summary
10.7 Exercises
10.1 INTRODUCTION
Modern nation-state functions through a set of institutions. Parliament, the judiciary, executive
apparatus such as bureaucracy and the police, and the formal structures of union -state
relations as well as the electoral system are the set of institutions constituted by the idea of
constitutionalism.  Their arrangements, dependencies and inter-dependencies are directly shaped
by the meta politico-legal document- i.e., Constitution.
The legal system derives its authority from the Constitution and is deeply embedded in the
political system; the presence of judiciary substantiates the theory of separation of power
wherein the other two organs, viz. legislature and executive stand relatively apart from it.
Parliamentary democracy works on the principle of ‘fusion of power,’ and in the making of
law, there is direct participation of the legislature and the executive, it is the judiciary that
remains independent and strong safeguarding the interests of the citizens by not allowing the
other organs to go beyond the Constitution.  It acts, therefore, as a check on the arbitrariness
and unconstitutionality of the legislature and the executive. Judiciary is the final arbiter in
interpreting constitutional arrangements. It is in fact the guardian and conscience keeper of the
normative values that are ‘authoritatively allocated by the state.’ The nature of the democracy
and development depends much on how the legal system conducts itself to sustain the overall
socio-economic and political environment.
10.2  GENESIS OF JUDICIARY IN INDIA
Indian judiciary is a single integrated system of courts for the union as well as the states, which
administers both the union and state laws, and at the head of the entire system stands the
Supreme Court of India. The development of the judicial system can be traced to the growth
3
of modern-nation states and constitutionalism.
During ancient times, the concept of justice was inextricably linked with religion and was
embedded in the ascriptive norms of socially stratified caste groups. Caste panchayats performed
the role of judiciary at the local level, which was tied up with the religious laws made by the
monarchs. Most of the Kings’ courts dispensed justice according to ‘dharma’, a set of eternal
laws rested upon the individual duty to be performed in four stages of life (ashrama) and
status of the individual according to his status (varna). The King’s power to make laws
depended on the religious texts and the King had virtually no power to legislate ‘on his own
initiative and pleasure’. Ancient state laws were largely customary laws and any deviation from
it or contradiction from dharma was rejected by the community.
In medieval times, the dictum ‘King can do no wrong’ was applied and the King arrogated
to himself an important role in administering justice. He became the apostle of justice and so
the highest judge in the kingdom. Perhaps, the theory of institutionalism guided justice, manifesting
gross arbitrariness and authoritarianism.
10.2.1  Modern Judiciary in India
With the advent of the British colonial administration, India witnessed a judicial system introduced
on the basis of Anglo-Saxon jurisprudence. The Royal Charter of Charles II of the year 1661
gave the Governor and Council the power to adjudicate both civil and criminal cases according
to the laws of England. However, the Regulating Act of 1773 established for the first time the
Supreme Court of India in Calcutta, consisting of the Chief Justice and three judges (later
reduced to two) appointed by the Crown acting as King’s court and not East India Company’s
court. Later, Supreme Courts were established in Madras and Bombay. The Court held
jurisdiction over “His Majesty’s subjects”. In this period the judicial system had two distinct
systems of courts, the English system of Royal Courts, which followed the English law and
procedure in the presidencies and the Indian system of Adalat/Sadr courts, which followed the
Regulation laws and Personal laws in the provinces. Under the High Court Act of 1861, these
two systems were merged, replacing the Supreme Courts and the native courts (Sadr Dewani
Adalat and Sadr Nizamat Adalat) in the presidency towns of Calcutta, Bombay and Madras
with High Courts. However, the highest court of appeal was the judicial committee of the Privy
Council. British efforts were made to develop the Indian legal system as a unified court
system. Indians had neither laws nor courts of their own, and both the courts and laws had
been designed to meet the needs of the colonial power.
The Government of India Act of 1935 (section 200) set up the Federal Court of India to act
as an intermediate appellant between High courts and the Privy Council in regard to matters
involving the interpretation of the Indian Constitution. It was not to ‘pronounce any judgement
other than a declaratory judgement’ which meant that it could declare what the law was but
did not have authority to exact compliance with its decisions. The Federal Court’s power of
‘judicial review’ was largely a paper work and therefore a body with very limited power.
Despite the restrictions placed on it, the Federal Court continued to function till 26th January
1950, when independent India’s Constitution came into force. In the meantime, the Constituent
Assembly became busy drafting the basic framework of the legal system and judiciary.
4
10.2.2   Constituent Assembly: the Background
The members of the Constituent Assembly envisaged the judiciary as the bastion of rights and
justice. They wanted to insulate the courts from attempted coercion from forces within and
outside the government. Sapru Committee Report on judiciary and the Constituent Assembly’s
ad hoc committee on the Supreme Court report formed the bulk of the guidelines for judiciary.
A.K.Ayyar, K.Santhanam, M.A.Ayyangar, Tej Bahadur Sapru, B.N.Rau, K.M. Munshi,
Saadulla and B.R.Ambedkar played important roles in shaping the judicial system of India.
The unitary judicial system seems to have been accepted with the least questioning. The
Supreme Court was to have a special, countrywide responsibility for the protection of individual
rights. Ambedkar was perhaps the greatest apostle in the Assembly of what he described as
‘one single integrated judiciary having jurisdiction and providing remedies in all cases arising
under the Constitutional law, the Civil, or the criminal law, essential to maintain the unity of
the country’.
10.3  STRUCTURE OF JUDICIARY
Under our Constitution there is a single integrated system of courts for the Union as well as
the States, which administer both union and state laws, and at the head of the system stands
the Supreme Court of India. Below the Supreme Court are the High Courts of different states
and under each high court there are ‘subordinate courts’, i.e., courts subordinate to and under
the control of the High Courts.
10.3.1   The Supreme Court
The Supreme Court is the highest court of law in India. It has appellate jurisdiction over the
high courts and is the highest tribunal of the land. The law declared by the Supreme Court
is binding on all small courts within the territory of India. It has the final authority to interpret
the Constitution. Thus, independence and integrity, the powers and functions and judicial
review are the issues of utmost importance concerned with the Supreme Court.
10.3.1.1  Composition and Appointments
The Supreme Court consists of the Chief Justice of India and not more than twenty-five other
judges. There can be ad hoc judges for a temporary period due to lack of quorum of the
permanent judges. However, Parliament has the power to make laws regulating the constitution,
organisation, jurisdiction and powers of the Supreme Court. The Constitution makes it clear
that the President shall appoint the Chief Justice of India after consultation with such judges
of the Supreme Court and of High Courts as he may deem necessary. And in the case of the
appointment of other judges of the Supreme Court, consultation with the Chief Justice, in
addition to judges is obligatory.
THE JUDICIARY
Supreme Court of India
High Court
(in each of the states)
Page 4


2
UNIT 10LEGAL SYSTEM AND JUDICIARY
Structure
10.1 Introduction
10.2 Genesis of Judiciary in India
10.2.1 Modern Judiciary in India
10.2.2 Constituent Assembly: the Background
10.3 Structure of Judiciary
10.3.1 The Supreme Court
10.3.1.1 Composition and Appointments
10.3.2.2 Jurisdiction of the Supreme Court
10.3.2 High Courts
10.3.2.1 Jurisdiction of High Courts
10.3.3 Subordinate Courts
10.4 Judicial Review and Public Interest Litigation (PIL)
10.5 Judicial Reforms-Agenda
10.6 Summary
10.7 Exercises
10.1 INTRODUCTION
Modern nation-state functions through a set of institutions. Parliament, the judiciary, executive
apparatus such as bureaucracy and the police, and the formal structures of union -state
relations as well as the electoral system are the set of institutions constituted by the idea of
constitutionalism.  Their arrangements, dependencies and inter-dependencies are directly shaped
by the meta politico-legal document- i.e., Constitution.
The legal system derives its authority from the Constitution and is deeply embedded in the
political system; the presence of judiciary substantiates the theory of separation of power
wherein the other two organs, viz. legislature and executive stand relatively apart from it.
Parliamentary democracy works on the principle of ‘fusion of power,’ and in the making of
law, there is direct participation of the legislature and the executive, it is the judiciary that
remains independent and strong safeguarding the interests of the citizens by not allowing the
other organs to go beyond the Constitution.  It acts, therefore, as a check on the arbitrariness
and unconstitutionality of the legislature and the executive. Judiciary is the final arbiter in
interpreting constitutional arrangements. It is in fact the guardian and conscience keeper of the
normative values that are ‘authoritatively allocated by the state.’ The nature of the democracy
and development depends much on how the legal system conducts itself to sustain the overall
socio-economic and political environment.
10.2  GENESIS OF JUDICIARY IN INDIA
Indian judiciary is a single integrated system of courts for the union as well as the states, which
administers both the union and state laws, and at the head of the entire system stands the
Supreme Court of India. The development of the judicial system can be traced to the growth
3
of modern-nation states and constitutionalism.
During ancient times, the concept of justice was inextricably linked with religion and was
embedded in the ascriptive norms of socially stratified caste groups. Caste panchayats performed
the role of judiciary at the local level, which was tied up with the religious laws made by the
monarchs. Most of the Kings’ courts dispensed justice according to ‘dharma’, a set of eternal
laws rested upon the individual duty to be performed in four stages of life (ashrama) and
status of the individual according to his status (varna). The King’s power to make laws
depended on the religious texts and the King had virtually no power to legislate ‘on his own
initiative and pleasure’. Ancient state laws were largely customary laws and any deviation from
it or contradiction from dharma was rejected by the community.
In medieval times, the dictum ‘King can do no wrong’ was applied and the King arrogated
to himself an important role in administering justice. He became the apostle of justice and so
the highest judge in the kingdom. Perhaps, the theory of institutionalism guided justice, manifesting
gross arbitrariness and authoritarianism.
10.2.1  Modern Judiciary in India
With the advent of the British colonial administration, India witnessed a judicial system introduced
on the basis of Anglo-Saxon jurisprudence. The Royal Charter of Charles II of the year 1661
gave the Governor and Council the power to adjudicate both civil and criminal cases according
to the laws of England. However, the Regulating Act of 1773 established for the first time the
Supreme Court of India in Calcutta, consisting of the Chief Justice and three judges (later
reduced to two) appointed by the Crown acting as King’s court and not East India Company’s
court. Later, Supreme Courts were established in Madras and Bombay. The Court held
jurisdiction over “His Majesty’s subjects”. In this period the judicial system had two distinct
systems of courts, the English system of Royal Courts, which followed the English law and
procedure in the presidencies and the Indian system of Adalat/Sadr courts, which followed the
Regulation laws and Personal laws in the provinces. Under the High Court Act of 1861, these
two systems were merged, replacing the Supreme Courts and the native courts (Sadr Dewani
Adalat and Sadr Nizamat Adalat) in the presidency towns of Calcutta, Bombay and Madras
with High Courts. However, the highest court of appeal was the judicial committee of the Privy
Council. British efforts were made to develop the Indian legal system as a unified court
system. Indians had neither laws nor courts of their own, and both the courts and laws had
been designed to meet the needs of the colonial power.
The Government of India Act of 1935 (section 200) set up the Federal Court of India to act
as an intermediate appellant between High courts and the Privy Council in regard to matters
involving the interpretation of the Indian Constitution. It was not to ‘pronounce any judgement
other than a declaratory judgement’ which meant that it could declare what the law was but
did not have authority to exact compliance with its decisions. The Federal Court’s power of
‘judicial review’ was largely a paper work and therefore a body with very limited power.
Despite the restrictions placed on it, the Federal Court continued to function till 26th January
1950, when independent India’s Constitution came into force. In the meantime, the Constituent
Assembly became busy drafting the basic framework of the legal system and judiciary.
4
10.2.2   Constituent Assembly: the Background
The members of the Constituent Assembly envisaged the judiciary as the bastion of rights and
justice. They wanted to insulate the courts from attempted coercion from forces within and
outside the government. Sapru Committee Report on judiciary and the Constituent Assembly’s
ad hoc committee on the Supreme Court report formed the bulk of the guidelines for judiciary.
A.K.Ayyar, K.Santhanam, M.A.Ayyangar, Tej Bahadur Sapru, B.N.Rau, K.M. Munshi,
Saadulla and B.R.Ambedkar played important roles in shaping the judicial system of India.
The unitary judicial system seems to have been accepted with the least questioning. The
Supreme Court was to have a special, countrywide responsibility for the protection of individual
rights. Ambedkar was perhaps the greatest apostle in the Assembly of what he described as
‘one single integrated judiciary having jurisdiction and providing remedies in all cases arising
under the Constitutional law, the Civil, or the criminal law, essential to maintain the unity of
the country’.
10.3  STRUCTURE OF JUDICIARY
Under our Constitution there is a single integrated system of courts for the Union as well as
the States, which administer both union and state laws, and at the head of the system stands
the Supreme Court of India. Below the Supreme Court are the High Courts of different states
and under each high court there are ‘subordinate courts’, i.e., courts subordinate to and under
the control of the High Courts.
10.3.1   The Supreme Court
The Supreme Court is the highest court of law in India. It has appellate jurisdiction over the
high courts and is the highest tribunal of the land. The law declared by the Supreme Court
is binding on all small courts within the territory of India. It has the final authority to interpret
the Constitution. Thus, independence and integrity, the powers and functions and judicial
review are the issues of utmost importance concerned with the Supreme Court.
10.3.1.1  Composition and Appointments
The Supreme Court consists of the Chief Justice of India and not more than twenty-five other
judges. There can be ad hoc judges for a temporary period due to lack of quorum of the
permanent judges. However, Parliament has the power to make laws regulating the constitution,
organisation, jurisdiction and powers of the Supreme Court. The Constitution makes it clear
that the President shall appoint the Chief Justice of India after consultation with such judges
of the Supreme Court and of High Courts as he may deem necessary. And in the case of the
appointment of other judges of the Supreme Court, consultation with the Chief Justice, in
addition to judges is obligatory.
THE JUDICIARY
Supreme Court of India
High Court
(in each of the states)
5
(In Districts)
District & Session Judges' Court
(Civil)
Subordinate Judges' Court
Munsiffs' Courts
Nyaya Panchayats
Provincial small cause court
(Criminal)
Court of Session
Subordinate Magistrates' Courts
Judicial Magistrates
Executive Magistrates
Panchayat Adalts
(In Metropolitan areas)
Metropolitan Magistrate's Court
City Civil and Session Courts
Presidency small cause court
A person shall not be qualified for appointment as a judge of the Supreme Court unless he
is:
a) a citizen of India, and
b) either
i) a distinguished jurist; or
ii) has been a High Court judge for at least 5 years, or
iii) has been an Advocate of a High Court for at least 10 years.
Once appointed, a judge holds office until he attains 65 years of age. He may resign his office
by writing addressed to the President or he may be removed by the President upon an
address to that effect being passed by a special majority of each House of the Parliament on
grounds of ‘proved misbehaviour’ and ‘incapacity’. The salaries and allowances of the judges
are fixed high in order to secure their independence, efficiency and impartiality . The Constitution
also provides that the salaries of the judges cannot be changed to their disadvantage, except
in times of a financial emergency. The administrative expenses of the Supreme Court, the
salaries, allowances, etc, of the judges are charged on the Consolidated Fund of India.
In order to shield the judges from political controversies, the Constitution empowers the court
to initiate contempt proceedings against those who impute motives to the judge in the discharge
of their official duties. Even the Parliament cannot discuss the conduct of a judge except when
a resolution for his removal is before it.
10.3.1.2 Jurisdiction of the Supreme Court
Page 5


2
UNIT 10LEGAL SYSTEM AND JUDICIARY
Structure
10.1 Introduction
10.2 Genesis of Judiciary in India
10.2.1 Modern Judiciary in India
10.2.2 Constituent Assembly: the Background
10.3 Structure of Judiciary
10.3.1 The Supreme Court
10.3.1.1 Composition and Appointments
10.3.2.2 Jurisdiction of the Supreme Court
10.3.2 High Courts
10.3.2.1 Jurisdiction of High Courts
10.3.3 Subordinate Courts
10.4 Judicial Review and Public Interest Litigation (PIL)
10.5 Judicial Reforms-Agenda
10.6 Summary
10.7 Exercises
10.1 INTRODUCTION
Modern nation-state functions through a set of institutions. Parliament, the judiciary, executive
apparatus such as bureaucracy and the police, and the formal structures of union -state
relations as well as the electoral system are the set of institutions constituted by the idea of
constitutionalism.  Their arrangements, dependencies and inter-dependencies are directly shaped
by the meta politico-legal document- i.e., Constitution.
The legal system derives its authority from the Constitution and is deeply embedded in the
political system; the presence of judiciary substantiates the theory of separation of power
wherein the other two organs, viz. legislature and executive stand relatively apart from it.
Parliamentary democracy works on the principle of ‘fusion of power,’ and in the making of
law, there is direct participation of the legislature and the executive, it is the judiciary that
remains independent and strong safeguarding the interests of the citizens by not allowing the
other organs to go beyond the Constitution.  It acts, therefore, as a check on the arbitrariness
and unconstitutionality of the legislature and the executive. Judiciary is the final arbiter in
interpreting constitutional arrangements. It is in fact the guardian and conscience keeper of the
normative values that are ‘authoritatively allocated by the state.’ The nature of the democracy
and development depends much on how the legal system conducts itself to sustain the overall
socio-economic and political environment.
10.2  GENESIS OF JUDICIARY IN INDIA
Indian judiciary is a single integrated system of courts for the union as well as the states, which
administers both the union and state laws, and at the head of the entire system stands the
Supreme Court of India. The development of the judicial system can be traced to the growth
3
of modern-nation states and constitutionalism.
During ancient times, the concept of justice was inextricably linked with religion and was
embedded in the ascriptive norms of socially stratified caste groups. Caste panchayats performed
the role of judiciary at the local level, which was tied up with the religious laws made by the
monarchs. Most of the Kings’ courts dispensed justice according to ‘dharma’, a set of eternal
laws rested upon the individual duty to be performed in four stages of life (ashrama) and
status of the individual according to his status (varna). The King’s power to make laws
depended on the religious texts and the King had virtually no power to legislate ‘on his own
initiative and pleasure’. Ancient state laws were largely customary laws and any deviation from
it or contradiction from dharma was rejected by the community.
In medieval times, the dictum ‘King can do no wrong’ was applied and the King arrogated
to himself an important role in administering justice. He became the apostle of justice and so
the highest judge in the kingdom. Perhaps, the theory of institutionalism guided justice, manifesting
gross arbitrariness and authoritarianism.
10.2.1  Modern Judiciary in India
With the advent of the British colonial administration, India witnessed a judicial system introduced
on the basis of Anglo-Saxon jurisprudence. The Royal Charter of Charles II of the year 1661
gave the Governor and Council the power to adjudicate both civil and criminal cases according
to the laws of England. However, the Regulating Act of 1773 established for the first time the
Supreme Court of India in Calcutta, consisting of the Chief Justice and three judges (later
reduced to two) appointed by the Crown acting as King’s court and not East India Company’s
court. Later, Supreme Courts were established in Madras and Bombay. The Court held
jurisdiction over “His Majesty’s subjects”. In this period the judicial system had two distinct
systems of courts, the English system of Royal Courts, which followed the English law and
procedure in the presidencies and the Indian system of Adalat/Sadr courts, which followed the
Regulation laws and Personal laws in the provinces. Under the High Court Act of 1861, these
two systems were merged, replacing the Supreme Courts and the native courts (Sadr Dewani
Adalat and Sadr Nizamat Adalat) in the presidency towns of Calcutta, Bombay and Madras
with High Courts. However, the highest court of appeal was the judicial committee of the Privy
Council. British efforts were made to develop the Indian legal system as a unified court
system. Indians had neither laws nor courts of their own, and both the courts and laws had
been designed to meet the needs of the colonial power.
The Government of India Act of 1935 (section 200) set up the Federal Court of India to act
as an intermediate appellant between High courts and the Privy Council in regard to matters
involving the interpretation of the Indian Constitution. It was not to ‘pronounce any judgement
other than a declaratory judgement’ which meant that it could declare what the law was but
did not have authority to exact compliance with its decisions. The Federal Court’s power of
‘judicial review’ was largely a paper work and therefore a body with very limited power.
Despite the restrictions placed on it, the Federal Court continued to function till 26th January
1950, when independent India’s Constitution came into force. In the meantime, the Constituent
Assembly became busy drafting the basic framework of the legal system and judiciary.
4
10.2.2   Constituent Assembly: the Background
The members of the Constituent Assembly envisaged the judiciary as the bastion of rights and
justice. They wanted to insulate the courts from attempted coercion from forces within and
outside the government. Sapru Committee Report on judiciary and the Constituent Assembly’s
ad hoc committee on the Supreme Court report formed the bulk of the guidelines for judiciary.
A.K.Ayyar, K.Santhanam, M.A.Ayyangar, Tej Bahadur Sapru, B.N.Rau, K.M. Munshi,
Saadulla and B.R.Ambedkar played important roles in shaping the judicial system of India.
The unitary judicial system seems to have been accepted with the least questioning. The
Supreme Court was to have a special, countrywide responsibility for the protection of individual
rights. Ambedkar was perhaps the greatest apostle in the Assembly of what he described as
‘one single integrated judiciary having jurisdiction and providing remedies in all cases arising
under the Constitutional law, the Civil, or the criminal law, essential to maintain the unity of
the country’.
10.3  STRUCTURE OF JUDICIARY
Under our Constitution there is a single integrated system of courts for the Union as well as
the States, which administer both union and state laws, and at the head of the system stands
the Supreme Court of India. Below the Supreme Court are the High Courts of different states
and under each high court there are ‘subordinate courts’, i.e., courts subordinate to and under
the control of the High Courts.
10.3.1   The Supreme Court
The Supreme Court is the highest court of law in India. It has appellate jurisdiction over the
high courts and is the highest tribunal of the land. The law declared by the Supreme Court
is binding on all small courts within the territory of India. It has the final authority to interpret
the Constitution. Thus, independence and integrity, the powers and functions and judicial
review are the issues of utmost importance concerned with the Supreme Court.
10.3.1.1  Composition and Appointments
The Supreme Court consists of the Chief Justice of India and not more than twenty-five other
judges. There can be ad hoc judges for a temporary period due to lack of quorum of the
permanent judges. However, Parliament has the power to make laws regulating the constitution,
organisation, jurisdiction and powers of the Supreme Court. The Constitution makes it clear
that the President shall appoint the Chief Justice of India after consultation with such judges
of the Supreme Court and of High Courts as he may deem necessary. And in the case of the
appointment of other judges of the Supreme Court, consultation with the Chief Justice, in
addition to judges is obligatory.
THE JUDICIARY
Supreme Court of India
High Court
(in each of the states)
5
(In Districts)
District & Session Judges' Court
(Civil)
Subordinate Judges' Court
Munsiffs' Courts
Nyaya Panchayats
Provincial small cause court
(Criminal)
Court of Session
Subordinate Magistrates' Courts
Judicial Magistrates
Executive Magistrates
Panchayat Adalts
(In Metropolitan areas)
Metropolitan Magistrate's Court
City Civil and Session Courts
Presidency small cause court
A person shall not be qualified for appointment as a judge of the Supreme Court unless he
is:
a) a citizen of India, and
b) either
i) a distinguished jurist; or
ii) has been a High Court judge for at least 5 years, or
iii) has been an Advocate of a High Court for at least 10 years.
Once appointed, a judge holds office until he attains 65 years of age. He may resign his office
by writing addressed to the President or he may be removed by the President upon an
address to that effect being passed by a special majority of each House of the Parliament on
grounds of ‘proved misbehaviour’ and ‘incapacity’. The salaries and allowances of the judges
are fixed high in order to secure their independence, efficiency and impartiality . The Constitution
also provides that the salaries of the judges cannot be changed to their disadvantage, except
in times of a financial emergency. The administrative expenses of the Supreme Court, the
salaries, allowances, etc, of the judges are charged on the Consolidated Fund of India.
In order to shield the judges from political controversies, the Constitution empowers the court
to initiate contempt proceedings against those who impute motives to the judge in the discharge
of their official duties. Even the Parliament cannot discuss the conduct of a judge except when
a resolution for his removal is before it.
10.3.1.2 Jurisdiction of the Supreme Court
6
The Supreme Court has vast jurisdiction and its position is strengthened by the fact that it acts
as a court of appeal, as a guardian of the Constitution and as a reviewer of its own judgements.
Article 141 declares that the law laid down by the Supreme Court shall be binding on all
courts within the territory of India. Its jurisdiction is divided into four categories:
a) Original Jurisdiction and Writ Jurisdiction
Article 131 gives the Supreme Court exclusive and original jurisdiction in a dispute between
the Union and a State, or between one State and another, or between group of states and
others. It acts, therefore, as a Federal Court, i.e., the parties to the dispute should be units
of a federation. No other court in India has the power to entertain such disputes.
Supreme Court is the guardian of Fundamental Rights and thus has non-exclusive original
jurisdiction as the protector of Fundamental Rights. It has the power to issue writs, such as
Habeas Corpus, Quo Warranto, Prohibition, Certiorari and Mandamus. In addition to
issuing these writs, the Supreme Court is empowered to issue appropriate directions and
orders to the executive. Article 32 of the Constitution gives citizens the right to move to the
Supreme Court directly for the enforcement of any of the Fundamental Rights enumerated in
part III of the Constitution.
b) Advisory Jurisdiction
Article 143 of the Constitution vests the President the power to seek advice regarding any
question of law or fact of public importance, or cases belonging to the disputes arising out of
pre-constitution treaties and agreements which are excluded from its original jurisdiction. This
jurisdiction does not involve a lis, the advisory opinion is not binding on the government, it
is not executable as a judgement of the court and the court may reserve its opinion in
controversial political cases as in the Babri Masjid case.
c) Appellate Jurisdiction
The Supreme Court is the highest court of appeal from all courts. Its appellate jurisdiction may
be divided into
i) cases involving interpretation of the Constitution - civil, criminal or otherwise
ii) civil cases, irrespective of any Constitutional question, and
iii) Criminal cases, irrespective of any Constitutional question.
Article 132 provides for an appeal to the Supreme Court by the High Court certification, the
Supreme Court may grant special leave to the appeal. Article 133 provides for an appeal in
civil cases, and article 134 provides the Supreme Court with appellate jurisdiction in criminal
matters. However, the Supreme Court has the special appellate jurisdiction to grant, in its
discretion, special leave appeal from any judgement, decree sentence or order in any case or
matter passed or made by any court or tribunal.
d) Review Jurisdiction
The Supreme Court has the power to review any judgement pronounced or order made by
it. Article 137 provides for review of judgement or orders by the Supreme Court wherein,
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