In India, we have the rule of law. Laws apply equally to all persons. A certain set of fixed procedures need to be followed when a law is violated. To enforce this rule of law, we have a judicial system that consists of the mechanism of courts that a citizen can approach when a law is violated.
All the courts at different levels in a country put together are called the judiciary. The Indian judiciary consists of a Supreme Court for the entire nation, High Courts in the states, District Courts and the courts at local level.
As an organ of government, the judiciary plays a crucial role in the functioning of India’s democracy.
Role of Judiciary
Courts take decisions on a very large number of issues.
1. Dispute Resolution
The judicial system provides a mechanism for resolving disputes between citizens, between citizens and the government, between two state governments and between the centre and state governments.
2. Judicial Review
As the final interpreter of the Constitution, the judiciary also has the power to strike down particular laws passed by the Parliament if it believes that these are a violation of the basic structure of the Constitution.
3. Upholding the Law and Enforcing Fundamental Rights
Every citizen of India can approach the Supreme Court or the High Court if they believe that their Fundamental Rights have been violated.
The principal role of the judiciary is to protect rule of law and ensure supremacy of law. It safeguards rights of the individual, settles disputes in accordance with the law and ensures that democracy does not give way to individual or group dictatorship.
The Indian Constitution has ensured the independence of the judiciary through a number of measures:
- Separation of powers is a key feature of the Constitution. Other branches of government, the legislature and the executive, cannot interfere in the work of the judiciary. The courts are not under the government and do not act on their behalf.
- All judges in the High Court as well as the Supreme Court are appointed with very little interference from other branches of government. The legislature is not involved in the process of appointment of judges.
- The judges have a fixed tenure. In order to be appointed as a judge, a person must have experience as a lawyer or must be well versed in law. They hold office till reaching the age of retirement. Security of tenure ensures that judges could function without fear or favour.
- The judiciary is not financially dependent on either the executive or legislature. The Constitution provides that the salaries and allowances of the judges are not subjected to the approval of the legislature.
- Parliament cannot discuss the conduct of the judges except when the proceeding to remove a judge is being carried out.
Structure of Judiciary or Courts
There are three different levels of courts in India. There are several courts at the lower level while there is only one at the apex level. The courts that most people interact with are called subordinate or district courts. Each state is divided into districts that are presided over by a District Judge.
Each state has a High Court which is the highest court of that state.
At the top is the Supreme Court that is located in New Delhi and is presided over by the Chief Justice of India. The decisions made by the Supreme Court are binding on all other courts in India.
Integrated Judicial System
The Constitution of India provides for a single integrated judicial system. The structure of the judiciary in India is pyramidal with the Supreme Court at the top, High Courts below them and district and subordinate courts at the lowest level. The lower courts function under the direct superintendence of the higher courts. The decisions made by higher courts are binding on the lower courts.
A person can appeal to a higher court if they believe that the judgment passed by the lower court is not just.
Different Branches of Legal System
It deals with conduct or acts that the law defines as offences. For example, theft, harassing a woman to bring more dowry, murder. It usually begins with the lodging of an First Information Report (FIR) with the police who investigate the crime after which a case is filed in the court. If found guilty, the accused can be sent to jail and also fined.
It deals with any harm or injury to rights of individuals. For example, disputes relating to sale of land, purchase of goods, rent matters, divorce cases. A petition has to be filed before the relevant court by the affected party only. In a rent matter, either the landlord or tenant can file a case. The court gives the specific relief asked for.
Appointment of Judges
The judges of the Supreme Court and the High Courts are appointed by the President on the advice of the Prime Minister and in consultation with the Chief Justice of the Supreme Court. In practice it now means that the senior judges of the Supreme Court select the new judges of the Supreme Court and the High Courts.
Generally, the senior-most judge of the Supreme Court is appointed as the Chief Justice of India (CJI). The other Judges of the Supreme Court and the High Court are appointed by the President after consulting the CJI.
Supreme Court is the apex court of India. Supreme Court has 26 judges including the Chief Justice of India (CJI). The retirement age of the judges of the Supreme Court is 65 years. High Courts are at the top of hierarchy in the State Judicial System. Presently there are 21 High Courts in India. The retirement age of the judges of a High Court is 62 years.
Removal of Judges
Once a person is appointed as judge of the Supreme Court or the High Court it is nearly impossible to remove him or her from that position. It is as difficult as removing the President of India. A judge can be removed only by an impeachment motion passed separately by two-thirds members of the two Houses of the Parliament.
A judge of the Supreme Court or High Court can be removed only on the ground of proven misbehaviour or incapacity. A motion containing the charges against the judge must be approved by special majority in both Houses of the Parliament. This means two-thirds majority of the total members present and voting, supported by a majority of the total membership of each house.
Qualifications and Tenures of Judges
A person, in order to be appointed an SC Judge must
- 1. be a citizen of India
- 2. be either a distinguished jurist or have at least 10 years' High Court practice as an advocate OR
- 3. have been a High Court Judge for at least 5 years.
There is no minimum age nor any fixed tenure has been prescribed. An SC Judge may cease to be so
- 1. on attaining the age of 65 years
- 2. by sending his resignation to the President
- 3. being impeached
An SC Judge gets a monthly salary of Rs. 90,000 plus an official residence free of cost while the CJI receives a monthly salary of Rs.1,00,000 apart from an official residence free of cost.
The High Court is at the apex of the judicial administration of the state. Article 214 of the Constitution provides that there shall be a High Court for each state of the Indian union. But the Indian Parliament is empowered to establish a common High Court for two or more states and to extend the jurisdiction of a High Court to a union territory.
The High Court consists of a Chief Justice and some other Judges. The number of judges is to be determined by the President of Indian from time to time. The Chief Justice of a High Court is appointed by the President in consultation with the Chief Justice of the Supreme Court and the Governor of the state concerned.
Supreme Court of India
Articles 124 to 147 of the Constitution of India lay down the composition and jurisdiction of the Supreme Court of India. The Supreme Court has Original jurisdiction, Appellate jurisdiction and Advisory jurisdiction.
The Supreme Court is the highest appellate court which takes up appeals against the verdicts of the High Courts and other courts of the states and territories. The Supreme Court has the power to transfer the cases from one High Court to another and even from one District Court of a particular state to another District Court of the other state. It has the power of Constitutional review.
Jurisdiction of Supreme Court
The functions and responsibilities of the Supreme Court are defined by the Constitution.
Original Jurisdiction means that certain types of cases can originate with the Supreme Court only without going to the lower courts before that. The Supreme Court has original jurisdiction in:
- Disputes between the Centre and one or more states
- Disputes between the Centre and any state(s) on one side and one or more states on the other side
- Disputes between two or more states
- Disputes regarding the enforcement of Fundamental Rights
Appellate Jurisdiction means that appeals against judgement of lower courts can be referred to it. The Supreme Court is the highest court of appeal in the country. Three types of cases fall with appellate jurisdiction:
- Constitutional cases: an appeal against a High Court judgement can be made to the Supreme Court if the High Court determines that the case involves questions on the interpretation of the Constitution
- Civil cases: an appeal can be made in civil cases if the High Court certifies that the case involves a substantial question of law of general importance, and that the said question needs to be decided by the Supreme Court
- Criminal cases: an appeal can be made in criminal cases if the High Court has reversed an acquittal and sentenced a person to death, or has taken up a case from a subordinate court and sentenced an accused to death. Interestingly, if the High Court reverses a conviction and orders acquittal, no appeal to the Supreme Court can be made.
Advisory Jurisdiction refers to the process where the President seeks the Court’s advice on legal matters. If the President asks for advice from the Supreme Court, the Court is duty-bound to give it. However, it not binding on the President to accept the advice.
Any individual, whose fundamental right has been violated, can directly move the Supreme Court for remedy. The Supreme Court can give special orders in the form of writs. The High Courts can also issue writs, but the persons whose rights are violated have the choice of either approaching the High Court or approaching the Supreme Court directly.
Public Interest Litigation: PIL
In normal course of law, an individual can approach the courts only if he or she has been personally aggrieved. In 1979, the Court set the trend when it decided to hear a case where the case was filed not by the aggrieved persons but by others on their behalf.
As the case involved a consideration of an issue of public interest, it came to be known as public interest litigation. PIL has become the most important vehicle of judicial activism.
The Supreme Court in the early 1980s devised a mechanism of Public Interest Litigation or PIL to increase access to justice. It allowed any individual or organisation to file a PIL in the High Court or the Supreme Court on behalf of those whose rights were being violated.
Judicial Review means the power of the Supreme Court (or High Courts) to examine the constitutionality of any law if the Court arrives at the conclusion that the law is inconsistent with the provisions of the Constitution, such a law is declared as unconstitutional and inapplicable.
The Supreme Court and the High Courts have the power to interpret the Constitution of the country. They can declare invalid any law of the legislature or the actions of the executive, whether at the Union level or at the state level, if they find such a law or action is against the Constitution. Thus they can determine the Constitutional validity of any legislation or action of the executive in the country, when it is challenged before them.
The term judicial review is nowhere mentioned in the Constitution. Together, the writ powers and the review power of the Court make judiciary very powerful.
Criminal Justice System
The four key players in the criminal justice system are the police, the Public Prosecutor, the defence lawyer and the judge.
Role of the Police in Investigating a Crime
One important function of the police is to investigate any complaint about the commission of a crime. An investigation includes recording statements of witnesses and collecting different kinds of evidence. On the basis of the investigation, the police are required to form an opinion. If the police think that the evidence points to the guilt of the accused person, then they file a chargesheet in the court.
It is not the job of the police to decide whether a person is guilty or innocent, that is for the judge to decide.
Police investigations always have to be conducted in accordance with law and with full respect for human rights. The Supreme Court has laid down guidelines that the police must follow at the time of arrest, detention and interrogation.
Role of the Public Prosecutor
A criminal offence is regarded as a public wrong. It is considered to have been committed not only against the affected victims but against society as a whole. In court, it is the Public Prosecutor who represents the interests of the State. The role of the Prosecutor begins once the police has conducted the investigation and filed the chargesheet in the court.
The Prosecutor must conduct the prosecution on behalf of the State. As an officer of the court, it is his or her duty to act impartially and present the full and material facts, witnesses and evidence before the court to enable the court to decide the case.
Role of the Judge
The judge conducts the trial impartially and in an open court. The judge hears all the witnesses and any other evidence presented by the prosecution and the defence. The judge decides whether the accused person is guilty or innocent on the basis of the evidence presented and in accordance with the law.
If the accused is convicted, then the judge pronounces the sentence. He may send the person to jail or impose a fine or both, depending on what the law prescribes.