Chapter
20
The Union
Government: The Judiciary
in the previous two chapters, you have studied
about two major organs of the Union Government, i.e. the Legislature and the Executive. You have seen that legislature makes laws,
whereas it is the responsibility of the executive to enforce them. In this chapter, we shall study about the
third organ of the government, i.e. the
Judiciary. In a federal government, it
is essential to have judiciary, which not only resolves disputes, but is the
final interpreter of the Constitution.
Whenever a dispute arises regarding property, violation of our rights,
abuse of power, violence, exploitation or any other issue related to our day to
day life, the matter can be taken to a court of law to seek justice. The court gives justice to the aggrieved
party. Therefore, a system of courts
under an independent judiciary is the foundation of our democracy, independence
of judiciary justice is possible only if the judiciary is independent,
impartial and unbiased. The judiciary
not only protects the rights of the citizens but also resolves various disputes
arising out of civil cases, criminal cases and constitutional matters without
any pressure from the executive or the legislature. Our Constitution has various provisions which
make our judiciary independent and keeps it free from the influence of the
legislature and the executive. Do you
know? There are special provisions that
ensure the independence of judiciary in India.
01. The judges are appointed on the basis of their qualifications. •
The judges cannot be removed easily.
There is a special procedure to remove them, called impeachment. The judges are paid adequate salary. Their salary and allowances cannot be reduced
during their tenure. The tenure of the judges
is fixed. 230
Types of
Cases There are mainly two types of cases which are brought before a
court. They are civil cases and criminal
cases The civil cases relate to disputes over property, marriage, money, rent
matters, purchase of goods, etc. They
also include the infringement or violation of rights of individuals. There are civil laws to settle and decide
civil cases. 12 The Criminal cases
involve offences like robberies, murders, cheating, harassing of women,
beating, violence, kidnapping, etc. Tax
evasion is also a criminal offence.
Usually, the criminal cases begin with the lodging of an FIR (First
Information Report). After investigation
by the police, the case is filed in the court.
In case the crime is proved, the accused can either be sent to jail or
fined or in some cases both fined and jailed.
Do you know? An FIR is lodged
with police about a criminal offence.
According to law, whenever a person informs the police about an offense,
it is compulsory for the police to register an FIR. The notable point here is that any one who
knows about the offenses can file an FIR and not necessarily the victim of the
crime. Single Unified and Integrated
Judicial System The unique feature of our federal democratic set-up is a single
unified and integrated judicial system for the whole country. It has got power to supervise and control the
working of entire judicial system in India.
It ensures justice to all. The
Supreme Court at the apex is the highest judicial authority followed by the High
Courts in the States and then the subordinate courts in every district. The lowest court in the judicial hierarchical
order is the Court of Magistrate. The
lower courts are controlled and supervised by the High Courts, a judgment given
by the lower court can be challenged in the higher court. Alike, an individual can go to the Supreme
Court of India to appeal against the judgment of a High Court. The Constitution of India says that the law
declared by the Supreme Court shall be binding on all courts within the
territory of India. ) Page 231.
Let us
now study the Indian Judicial System with the help of the following flowchart:
INDIAN JUDICIAL SYSTEM Supreme Court of India High Courts Subordinate Courts or
Lower Courts in Districts Civil Courts District Judge / Additional District
Judge Criminal Courts Sessions Judge / Additional Sessions Judge Court of The Subordinate Civil Judge First Class
Assistant Session Judge Munsif / Court of Sub - Judge Second Class Chief
Judicial Magistrate / Chief Metropolitan Magistrate Court of Magistrate of
Second Class / Special Judicial Magistrate Court of Magistrate of Second Class
/ Special Judicial Magistrate / Executive Magistrate 232
Ranian
are SUPREME COURT OF INDIA The Supreme Court was established on January 26, 1950.
The Supreme Court is the highest court of the country with its Headquarter at
New Delhi. It hears both civil and
criminal cases. It also deals with the
cases pertaining to the interpretation of the Constitution of India,
composition The Supreme Court comprises of a Chief Justice the Supreme Court
and a maximum number of 31 other judges who are appointed by the President of
India on the recommendation of the collegium
system. It is a closed group
consisting Do You Know? of Chief Justice
of India and four senior The Highest Court of India during the British judges
of the Supreme Court. While period was
known as the Federal Court of India appointing the Chief Justice, the President
(1937–49). It was located in the Parliament House
consults other judges as she / he deems proper.
Normally, the senior most judge of the Supreme Court is appointed as the
Chief Justice of India. Like, the other
judges of the Supreme Court are also appointed by the President of India. Qualifications of Judges to be eligible to
become a judge of the Supreme Court, a person must be: a citizen of India. a judge of the High Court / Courts for a
minimum period of five years or •
a distinguished jurist in the opinion of the President of India. Tenure and Removal from Office the Chief
Justice and all other judges of the Supreme Court remain in office till they
attain the age of 65 years, D4 Do You Know?
Once a judge is appointed, she / he bambu cannot be removed from office
under special majority means an absolute majority of total membership and two -
third majority of normal circumstances.
She / He can be members present and voting in each House. removed, only on grounds of proved
misbehaviour or incapacity to discharge functions, by the President on the
basis of a resolution passed by each House of the Parliament by a special
majority during the same session. This
process is called impeachment. 233
Salary
and Allowances The government has set the salary for the Chief Justice of India
at Rupees 2.8 lakhs per month whereas for the other judges at Rupees 2.5 lakhs
per month. Besides allowances, they are
provided with many other facilities, such as official residence, car, travel
allowances, leave and pension on retirement powers and FUNCTIONS of SUPREME
COURT as the highest court of the country, the Supreme Court performs many
important functione and exercises different
types of jurisdiction, such as original, appellate, advisory and
supervisory jurisdiction. Original
Jurisdiction tower Original jurisdiction is exercised in cases which originate
in the Supreme Court, which means they can be heard in the Supreme Court for
the first time. Such cases include
disputes arising (6) between the Union and one or more States (ii) between the
Union and a State / States visa - vis one or more States (iii) between two or
more States. Inter-state disputes
regarding sharing of water and power also come under this category. Appellate Jurisdiction Appellate jurisdiction
is exercised to hear appeals against the decisions of the High Courts and other
courts regarding constitutional, civil and criminal cases. This jurisdiction is applicable to case
involving interpretation of the Constitution, cases sent by the High Courts and
the criminal cases where a High Court changes the decision of a lower court and
gives a death sentence. The Supreme
Court can also review its own decisions taken earlier. Advisory Jurisdiction Advisory jurisdiction
covers constitutional issues or matters of public importance if the Presiden of
India desires to obtain the opinion of the Supreme Court. Any such opinion given by the Supreme Court
is not binding on the President.
Supervisory Jurisdiction Supervisory jurisdiction empowers the Supreme
Court to supervise the functioning of all the courts below it. Court of Record The Supreme Court functions
as the Court of Record under which the proceedings of the cour are
preserved. These records can be cited as
precedents in future in all the courts in the country. Protector of Fundamental Rights as Protector
of Fundamental Rights, the Supreme Court may declare a law passed by the
legislature null and void, if it encroaches upon the fundamental rights of the
people. Therefore, ou Fundamental Rights
are secure in the hands of the Supreme Court.
234
The
Guardian of our Constitution The Supreme Court is the Guardian of our
Constitution. So, the Court does not
allow either the executive or the legislature to violate any provision of the
Constitution. The Supreme Court alone
has the authority to interpret the Constitution. The power of Judicial Review Judicial Review
is the power of the Supreme Court to review the laws enacted by the Parliament
or the State Legislatures to ascertain whether they are in conformity with the
provisions of the Constitution or not.
Any law declared unconstitutional, immediately ceases to remain in
force. In this way, the court protects
the rights of the people and guards the Constitution. Thus, judicial review is an important means
of protecting and enforcing the rights.
After going through the powers and functions of the Supreme Court, don't
you think that the role of this apex court is quite wide and
comprehensive? It has always protected
the Constitution. it observes the
activities of government and stops them wherever and whenever necessary. It also interferes in the working of other
courts to ensure justice through fair trials.
HIGH COURT The High Court, be it for one state or more than one state,
functions under the supervision, guidance and control of the Supreme Court of
India. It is a part of integrated
judicial system. Composition The High
Court consists of a Chief Justice and some other judges. The number of judges varies from state to
state, depending on its size and population.
The Chief Justice of a High Court is appointed by the President of India
in consultation with the Chief Justice of the Supreme Court and the Governor of
the concerned state. Similarly, the
other judges are also appointed by the President on the advice of the Chief
Justice of India, the Governor of State and the Chief Justice of the High Court
of the concerned state. Mumbai High
Court Bengaluru High Court Allahabad High Court Qualifications Any citizen of
India who has been an advocate in one or more High Courts for at least 10 years
or holder of a judicial office in Subordinate Courts for a period of 10 years,
is eligible for appointment as judge in
a High Court. 235
Emoluments
The government has set the salary for the Chief Justice of a High Court at
Rupees 2.5 lakhs per month, whereas for other High Court judges at Rupees 2.25
lakhs per month. Besides this, they are
entitled to certain rights like a free residence, official car and other
allowances. Tenure and Removal A judge
may continue to remain in office till the attainment of 62 years of age. The judges of the High Court can be removed
from office by the President of India in the same manner as the judges of the
Supreme Court through impeachment.
Unlike the judges of the Supreme Court, a retired High Court judge may
practice in any High Court, but not before any Lower Court or in the same High
Court. However, she / he may be
appointed as a judge of the Supreme Court.
POWERS AND FUNCTIONS OF HIGH COURT A High Court is mainly a court of
appeal both in civil and criminal cases brought before it, against the
decisions of the Lower Courts. This
comes under the appellate jurisdiction of the High Courts. Do you know?
There are 29 states in India, but only 24 High Courts. There is a common High Court at Chandigarh
for the states of Punjab and Haryana. It
also covers the Union Territory of Chandigarh.
The National Capital of Territory of Delhi is the only Union Territory
which has its own Court. The original
jurisdiction of a High Court is very limited.
Cases involving violation of Fundamental Rights, disputes related to the
election of an MP (Member of Parliament) or MLA (Member of Legislative
Assembly) where the interpretation of the Constitution is required, come under
the original jurisdiction of the High Courts.
The cases pertaining to marriage, divorce, laws, wills of the deceased
persons, etc. , are also taken up by the
High Court. The High Court also has the
power of judicial review. It can
transfer to itself in those cases where substantial question of law is involved
and require interpretation of the Constitution.
Exercising its supervisory jurisdiction, all the Subordinate Courts in
the State concerned function under the control and guidance of the High Court
of the State. 236
Like a
Like the Supreme Court of India, a High Court is also a 'Court of Record'. It has the power t punish for contempt of
itself. All decisions of the High Court
are binding on Lower Courts, who ar bound to follow them. They are cited as precedents. Subordinate Courts Subordinate Courts are the
Lower Courts at the district level and below.
They are supervise and controlled by the High Court of the concerned
state. They are the Civil Courts,
Criminal Court and Revenue Courts.
Besides these Lower Courts, there is provision for Nyaya Panchayots an
Lok Adalats also. Each State of India
has its own system of courts. But the
general pattern is the same. Civil
Courts The highest civil court in a district is called the District Court. The judges of these courts ar appointed by
the Governor in consultation with the High Court. All the civil matters pertaining t property,
contracts, agreements, landlord - tenant disputes, which do not originate in
the High Courts are heard in the District Courts. Below the District Court, there may be one or
more Courts of Sub - Judges. Separate
family court are also there. They hear
cases of family disputes like divorce, custody of children, etc. Below ther are the Courts of Munsifs. Criminal Courts for criminal cases in a
district, the highest court is the court of the Sessions Judge. Below the court, there are courts of
Magistrate of First, Second and Third Class.
In big cities like Delhi, Kolkata First class magistrates are called
Metropolitan Magistrates. Revenue Courts
The highest revenue court in a district is the Board of Revenue which deals
with the cases o land revenue. Courts of
Commissioner, Collector, Tehsildar and Assistant Tehsildar work under the Board
of Revenue which hears the final appeals against the lower revenue courts. al of al 0 Lok Adalats It is said that
"justice is delayed is justice denied '. Since the process of imparting
justice is ver lengthy and expensive, it is becoming out of reach of the common
man. Besides, thousands of cases are lying pending in various courts. As an effort to simplify the
legal procedures, reduce the cost litigation and to provide speedy justice, Lok
Adalats have been set - up. It was in 1985 when the fir 0 ed 237)
Lok
Adalat was held in Delhi. You will be
surprised to know that about 150 cases were settled on the first day The Lok
Adalat is normally presided over by a retired judge. The disputing parties plead their case
themselves. No advocate or pleader is
allowed to argue the case. Even
witnesses are not examined. Efforts are
made to settle disputes through compromise, mutual agreement and on - the -
spot decisions Do You Know? The idea of Lok Adalat was mainly advocated by
Justice P.N. Bhagwati, a former Chief
Justice of India. The idea is based on
the ancient Gram Panchayats where the judges were known as Panch
Parmeshwar. Mahatma Gandhi had also
strongly pleaded the revival of Gram Panchayats to settle disputes without
wasting time and money. The idea of Lok Adalat is really commendable
and indeed very useful. That is why, Lok
Adalats are called People's Courts for speedy and inexpensive justice. Public Interest Litigation (PIL) Vast
majority of the people living in India are poor and illiterate. They cannot even think of going to the courts
to seek justice. Justice is a remote
dream for them. So, the concept of
Public Interest Litigation (PIL) was devised by the Supreme Court of
India. Any person from the public,
whether affected or not, may write an ordinary letter or even a post card,
drawing the attention of the High Court or the Supreme Court towards any matter
of serious public importance. For
example, one may write about the inadequate and unsafe transport system or
supply of unhygienic drinking water or about the exploitation of children and women
in a particular establishment if the court is convinced that the matter is of
public importance, it will take up and decide
the case. Public Interest
Litigation is a novel idea. It helps the
poor, the illiterate and the ignorant) matters of urgent public
importance. It seems that PIL has served
the purpose for which it was devised and has proved to be a boon for the common
man. It has set right a number of wrongs
committed by an individual or society.
It has brought legal aid to millions of poor, illiterate and ignorant
Indians. 238
Do you
know? Two PIL cases that changed our
lives are 1. Sheela Barse vs State of Maharashtra (Feb - 15, 1983) This was a
historic judgment that dealt with the issue of custodial violence against women
in prisons This resulted in an order facilitating separate police lock ups for women convicts in order to shield them
from further trauma and brutality. 2.
Green Litigation (1998): PIL by enviornmentalist M.C. Mehta was behind the court's order on CNG
vehicles in Delhi. CNG verdict on July
28, 1998 forced the vehicles in the capital to switch to a different fuel in
order to keep a check on vehicular pollution.
Keywords appellate: dealing with appeals for decisions to be reversed
given by a lower court hierarchy: a system in which members of an organization
or society are ranked according to their status or authority litigation: a
legal process of resolving a dispute through a court. precedenti an earlier event or action that is
regarded as an example or a guide to be considered in similar
circumstances. witness: a person who has
personally seen an event, a crime, an accident, etc. 239
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