Judicial System in India

Sreejan Shandilya Research Intern Institute of Law and Economics University of Hamburg Rauthembaumchaussee 36, 20148 Hamburg +49 151 29417656

Supreme Court (Apex Judicial Body )

Appointment : Chief Justice of India is appointed by the President of India (who acts on the advice on the Govt. of India, so in practice the Govt appoints the judges). However, the President must appoint judges in consultation with the Supreme Court and appointments are generally made on the basis of seniority and not political preference. Article 124(2) Salary: The salary and allowances are determined by the Parliament. However it cannot be reduced after their appointment (except in case of financial emergency which has never been declared)
Article 125

Number of Judges: Parliament decides the number of judges. It can vary the number through amending the constitution. Article 124(1) Removal: The power lies with the Parliament. However the procedure is so cumbersome, impeachment has never been effected for any judge till date. Judge serve upto the age of 65. Article 124(4) Enforcement: The Executive is legally bound to enforce the decisions of the court. Under Articles 129 and 142 of the Constitution the Supreme Court has been vested with power to punish anyone for contempt of any law court in India including itself.
Article 129

HIGH COURTS IN INDIA

The High Court is at the apex of the judicial administration of the state. Art 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. Similarly, Parliament can also reduce the area of jurisdiction of a High Court. 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. The procedure for appointing other judges is the same except that the Chief Justice of the High Court concerned is also consulted. They hold office until they attain the age of 62 years and are removed from office in the same manner as a judge of the Supreme Court. Qualification A person shall be qualified for appointment as a judge of the High Court if (a) he is a citizen of India, (b) has for at least ten yeas held a judicial office in the territory of India, or (c) has for at least ten years been an advocate of a High Court, or of two or more such courts in succession. Every judge of the High Court before entering upon his office shall make and subscribe before the Governor of the state, an oath of affirmation in the form prescribed by the Constitution. Removal of judges A judge of the High Court shall hold office until he attains the age of 62 years. A judge may resign from his office by writing under his hand to the president of India. He can also be removed by the President of India on the ground of proved misbehavior or inefficiency if a resolution to that effect is passed by both the Houses of Parliament by a two-thirds majority of the total members present and voting, supported by a majority of the total membership of each house. Salary The Chief Justice and the judges draws attractive salaries, apart from various other allowances. The service conditions of the judges cannot be altered to their disadvantages during the course of their service except in the case of Financial Emergency. Like the judges of Supreme Court the judges of the High Court have been given complete security of service. A High Court Judge may be transferred from one High Court to another by the President after consultation with the Chief Justice of India.

Jurisdiction The High Court has Original jurisdiction in such matters as writs and Appellate jurisdiction over all subordinate courts in their jurisdiction. Every High court has the power to issue to any person or authority including any government within its jurisdiction, direction, or orders including writs which are in the nature of habeas corpus, mandamus prohibition, qua-warranto and certiorari or any of them for enforcement of fundamental rights conferred by part III of the constitution and for any other purpose. Election petitions challenging the elections of Members of Parliament or member of State Legislative Assembly or other local bodies can be filed in the concerned High Court. The High Courts have Appellate jurisdiction in both civil and criminal cases against the decisions of lower courts. They can decide revenue cases also. Appeal can be filed against the decision of a session judge if the accused has been sentenced to imprisonment for 7 years or more. Capital punishment given by sessions judge is not executed unless it is confirmed by the High Court. Under Revisory jurisdiction, the High Court is empowered to call for the records of any court to satisfy itself about the correctness of the legality of the orders passed. This power may be exercised on the petition of the interested party or it can suo moto call for the records and pass necessary orders. The High Court may withdraw a case from a lower Court if it is satisfied that the case involves a substantial question of law as to the interpretation of the Constitution, the determination of which is necessary for the disposal of the case. The High Court can after delivering judgement send back the case to the court of hearing which proceeds on the lines of the judgement of the High Court. All Courts excepting tribunals dealing with the Armed forces, are under the supervision of the High Court. This power is enjoyed under Art 227 of the Constitution. Thus administration of the state's judiciary is the essential function of the High Court. It is consulted while appointments are made to the lower courts. It forms rules and regulations regarding the working of the subordinate courts in the state. It also determines the number of cases to be dealt with by each of the lower courts during a period of time. Every High Court is a court of record. Subordinate Courts are bound to follow the decisions of the High Courts. It's proceedings and decisions are referred to in all future cases. It*has the power to punish for contempt of court.

<Articles 214-231>

LOWER JUDICIARY The Lower Judiciary is divided into courts that try criminal and civil cases.

Criminal Side (courts are in ascending order of jurisdiction)

1) Judicial Magistrate of 2nd Class : is competent to try the case if the offence is punishable

with imprisonment for a term not exceeding one year, or with fine not exceeding five thousand rupees ( ~ $ 111), or with both.
2) Judicial Magistrate of 1st Class (or First Class Magistrate) : is competent to try offences

punishable with imprisonment for a term not exceeding three years or with fine up to ten thousand rupees (~$ 222)
3) Assistant Sessions Judge: is competent to impose punishments up to ten years

Imprisonment and any fine.

4) The Sessions Judge can impose any punishment authorized by law; but the sentence of

death passed by him should be subject to the confirmation by the High Court. All of them have their separate courts.

Hierarchy is 1<2<3<4 Civil Side (in ascending order of Jurisdiction)

1) Munsif: The District Munsif Court is authorised to try matters pertaining to certain pecuniary limits. The State Government notifies the pecuniary limits for the District Munsiff Courts.
For Example : If the value of the subject matter of the suit is worth rupees one lakh or

below, the Munsif's Court is the competent court to try the suit. (~ $ 2235) However this monetary limit varies from state to state.
2) Subordinate Judge : If the value exceeds above rupees one lakh (~ $2235) the suit should

be filed before the Subordinate Judge's Court (Sub Court). Again this value varies from state to state. 3) District Judge: Appeals from the decisions of the Sub Court are filed before the District Judge if the subject matter of the suit is of value up to rupees two lakhs (~ $4471) (or

such value as my be set by the State). Certain matters on criminal or civil side cannot be tried by a court inferior in jurisdiction to a district court if the particular enactment makes a provision to the effect. This gives the District Court original jurisdiction in such matters.

Hierarchy is 1<2<3

Please Note: District and Sessions Judge is the same person and his court is known as the District and Sessions Court. He is known as District Judge when he is presiding over a civil case and session judge when over a criminal case.

<Articles 233 to 237> < http://targetstudy.com/professions/magistrate-judge.html>

Tribunals
A few of the Indian Tribunals are as follows:

1) Appellate Tribunal for electricity : The Electricity Act of 2003 consolidates the laws relating to generation, transmission, distribution, trading and use of electricity and generally for taking measures conducive to development of electricity industry, promoting competition therein, protecting interest of consumers and supply of electricity to all areas, rationalization of electricity tariff ensuring transparent policies regarding subsidies, promotion of efficient and environmentally benign policies, constitution of Central Electricity Authority, Regulatory Commissions and establishment of Appellate Tribunal and for matters connected therewith or incidental thereto. <http://aptel.gov.in/index.htm>

2) Debt Recovery Tribunal : Keeping in line with the international trends on helping financial institutions recover their bad Debt quickly and efficiently, the Government of India has constituted thirty three Debt Recovery Tribunal and five Debt Recovery Appellate Tribunal across the country. The Debt Recovery Tribunal are located across the country. Some cities have more than one Debt Recovery Tribunal located therein. New Delhi and Mumbai have three Debt Recovery Tribunal. Chennai and Kolkata have two Debt Recovery Tribunal each. One Debt Recovery Tribunal each has been constituted at Ahmdabad, Allahabad, Arungabad, Bangalore, Chandigrah, Coimbatore, Cuttack, Ernakulam, Guwahati, Hydrabad, Jabalpur, Jaipur, Lucknow, Nagpur, Patna, Pune, Ranchi and Vishakapatnam. Depending upon the number of cases a Debt Recovery Tribunal is constituted. There are a number of States that do not have a Debt Recovery Tribunal. The Banks & Financial Institutions and other parties in these States have to go to Debt Recovery Tribunal located in other states having jurisdiction over there area. Thus the territorial jurisdiction of some Debt Recovery Tribunal is very vast. For example, the Debt Recovery Tribunal located in Guwahati has jurisdiction over all the seven North Eastern States. Similarly, the territorial jurisdiction of the Debt Recovery Tribunal located at Chandhigarh too has a very wide jurisdiction over the States of Punjab, Harayana, Chandhigarh. <http://bankdrt.net>

3) Central Administrative Tribunal : The Central Administrative Tribunal has been established for adjudication of disputes with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or other local authorities within the territory of India or under the control of Government of India and for matters connected therewith or incidental thereto. This was done in pursuance of the amendment of Constitution of India by Articles 323A. The Act provides for establishment of Central Administrative Tribunal (CAT) and the State Administrative Tribunals. The CAT was set-up on 1 November 1985. Today, it has 17 regular benches, 15 of which operate at the principal seats of High Courts and the remaining two at Jaipur and Lucknow. These Benches also hold circuit sittings at other seats of High Courts. In brief, the tribunal consists of a Chairman, Vice-Chairman and Members. The Members are drawn, both from judicial as well as administrative streams so as to give the Tribunal the benefit of expertise both in legal and administrative spheres. <http://cgat.gov.in/intro.htm>

4) The Customs, Excise and Service Tax Appellate Tribunal (CESTAT) was
constituted on the 11th October 1982. CESTAT was created to provide an independent forum to hear the appeals against orders and decisions passed by the Commissioners of Customs and Excise under the Customs Act, 1962, Central Excise Act, 1944, Finance Act 94 relating to Service Tax. The Tribunal is also empowered to hear the appeals against orders passed by the designated authority with regard to Anti Dumping Duties under the Customs Tariff Act, 1975. The sanctioned strength of the Members (including President and two Vice Presidents) is 21.It has 3 benches in Delhi and 4 benches in Mumbai and one each at Kolkata, Chennai and Banglore. Each Bench consists of a Judicial Member and a Technical Member. With a view to have expeditious disposal of small cases, a Bench of Single Member deals with the matters not exceeding Rs.10 Lakhs (~$22354) is also constituted. Except in the matters relating to classification and valuation of goods, the Tribunal is the final Appellate Authority though a reference to the High Court can be made on a question of Law. In classification and valuation matters, the appeal against the order of the Tribunal lies only to the Honble Supreme Court. <http://cestat.gov.in/organize_org.htm>

5) Intellectual Property Appellate Board (IPAB) has been constituted by a Gazette notification of
the Central Government in the Ministry of Commerce and Industry on 15th September 2003 to hear appeals against the decisions of the Registrar under the Trade Marks Act, 1999 and the

Geographical Indications of Goods (Registration and Protection) Act, 1999. IPAB has its headquarters at Chennai and has sittings at Chennai, Mumbai, Delhi, Kolkata and Ahmedabad. The object of setting up the Appellate Board is to hear and decide appeals from the order or decision of the Registrar of Trade Marks which were earlier under the jurisdiction of the High Courts. The Appellate Board can also entertain original applications for rectifications of the register of trade marks under sections 47 and 57 of the above Act. It can also entertain applications for rectifications of the register under section 125 of the above Act. Appeals from an order or decision of the Registrar under rule 162 of the Trade Marks Rules, 2002 shall also be heard by the IPAB. It is provided that similar matters arising under the Geographical Indications of Goods ( Registration and Protection ) Act, 1999 shall also be heard and decided by IPAB. http://www.ipab.tn.nic.in/ & http://www.ipab.tn.nic.in/Jurisdiction.htm

6) The Railway Claims Tribunal : The Railway Claims Tribunal Act, 1987 was enacted to provide speedy disposal of claims against the Railway Administration. Although Railway Administration made a way to compensate the consignor/consignee of goods etc. and also for compensation for loss of lives yet people were not often satisfied and they went to Courts, which took very long time to decide the claims and litigation was protracted for indefinite period. Therefore, the necessity was felt to expedite the disposal of claims at the earliest, which resulted in establishment of the Claims Tribunal, which would exclusively deal with such claims and speedily dispose of the same. As a result, the burden of Courts was reduced and speedy relief was made available. Even the refund of fares and freights was also brought within the purview of Tribunal.

The RCT Act is to provide for the establishment of a Railway Claims Tribunal for inquiring into and determining claims against a Railway Administration for loss, destruction, damage, deterioration or non-delivery of animals or goods entrusted to it to be carried by railway or for the refund of fares or freight or for compensation for death or injury to passengers occurring as a result of railway accidents or untoward incidents and for matters connected therewith or incidental thereto. < http://rct.nic.in/intro.htm>

7) Labour Courts, Industrial Tribunals and National Tribunals: The Industrial Disputes Act, 1947 provides for setting up of Labour Courts, Industrial Tribunals and

National Tribunals. Labour Courts and Industrial Tribunals are set up by the Central Government and the State Government or the Administrations of Union Territories for dealing with matters which fall in the Central and the State sphere respectively. It is, however, open to the Central Government to refer a matter in relation to which it is the appropriate Government to a Labour Court or a Industrial Tribunal constituted by the State Govt. Labour Courts deal with matters pertaining to discharge and dismissal of workmen, application and interpretation of Standing Orders, propriety of orders passed under Standing Orders, legality of strikes of lock outs etc. Industrial Tribunals deal with collective disputes such as wages, hours of work, leave, retrenchment, closure as well as all matters which come under the jurisdiction of Labour Courts. The Central Government may set up a National Tribunal for adjudication of industrial disputes which in its opinion involve questions of national importance or are of such nature that industrial establishments in more than one State are likely to be interested in such disputes. 22 CGIT have been set up by the Central Govt. <http://labour.nic.in/cgit/> 8) Green Tribunal : In June 2010, India's Parliament adopted the National Green Tribunal Act (NGT Act), which established a new court, the National Green Tribunal, exclusively for handling cases involving environmental law. The Tribunal began operations on October 19, 2010, at which time some 5,000 environmental cases were pending in India. The Tribunal replaces the country's National Environment Appellate Authority, and with the adoption of the NGT Act, the National Environmental Tribunal Act and the National Environment Appellate Authority Act were repealed. < http://www.loc.gov/lawweb/servlet/lloc_news?disp3_l205402462_text>

9) Income Tax Appellate Tribunal : Was setup before Indian Indpendence in 1941 to hear cases regarding to Income Tax. There was thus no independent forum for redress of the aggrieved assesees under the Income Tax Act. Civil Courts of the land were prohibited by Section 67 of the Indian Income-tax Act to entertain litigation in tax matters. Further section 226 of the Government of India Act, 1935 specifically forbade interterence in revenue matters by High Courts in exercise of their original jurisdiction. The scope of judicial review in tax matters was thus very limited. This perhaps gave birth to the wide-spread desire of the assessees for an appeal to an independent body on important questions of fact. Was retained after independence. Presently has 27 benches across the country. < http://www.itatonline.in:8080/itat/site/AboutITAT.htm>

10) 11)

Foreign Exchange Regulation Appellate Board Appellate Tribunal for forfeited Property

Family Courts in India: An Overview It is not unknown that a gaping loophole in the Indian Judiciary is the backlog of cases. There are cases dealing with a broad spectrum of issues such as family matters and property which continue for generations. Such cases continue for atrocious periods of time, ranging from 7 years to 30 years. In such a scenario, the channeling of cases to different courts set up specially for this purpose not only ensures their speedy disposal, but also ensures that the cases, being dealt by with experts in courts specially set up for this purpose; are dealt with more effectively. Further, pertinent to note here is that Marriage as an institution has become the subject of great judicial scrutiny. There are a number of judicial provisions dealing with marriage and its various aspects. There are also cases of misuse of provisions like Section 498A of the Indian Penal Code, Protection of Women from Domestic Violence Act, Section 125 Criminal Procedure Code, Child Custody laws to name a few. There are issues like alimony which become the topic of great controversy and cause harassment to families. What further becomes a problem is that personal issues get intertwined with the legal issues and lead to the unnecessary prolonging of the disposal of these cases. The Family Courts Act, 1984 was part of the trends of legal reforms concerning women. Because of the building pressure from various institutions lobbying for the welfare of women all over the country, the Act was expected to facilitate satisfactory resolution of disputes concerning the family through a forum expected to work expeditiously in a just manner and with an approach ensuring maximum welfare of society and dignity of women. Prevalence of gender biased laws and oppressive social practices over centuries have denied justice and basic human rights to Indian women. The main purpose behind setting up these Courts was to take the cases dealing with family matters away from the intimidating atmosphere of regular courts and ensure that a congenial environment is set up to deal with matters such as marriage, divorce, alimony, child custody etc. Procedure followed by the family courts- advantages of a conciliatory approach. The Family Courts are free to evolve their own rules of procedure, and once a Family Court does so, the rules so framed over ride the rules of procedure contemplated under the Code of Civil Procedure. In fact, the Code of Civil Procedure was amended in order to fulfil the purpose behind setting up of the Family Courts.

A major drawback of the Family Courts Act happens to be that it doesnt explicitly empower Courts to grant injunctions to prevent domestic violence. While there has been progress, viz the enactment of the Protection of Women from Domestic Violence Act, 2005 which now extends to punishing women for acts of violence as well; there are still issues of jurisdiction to be tackled. It must be understood that the Family Courts Act has to be read in totality i.e. in accordance with the provisions in other laws, for example, the Civil Procedure Code on matters of jurisdiction. Since the Family Court has restrictive jurisdiction and does not have the power to decide issues of contempt, people do not seem to take the court as seriously as they would a magistrate or a city civil court. Further, it was laid down in the Family Courts Act that the majority of judges should be women. However, this provision has not been complied with. In the course of the workshop organised in March 2002 by the National Commission for Women, it was noted that there were only 18 women judges till then in the Family Courts in India out of 84 judges in all the 84 courts that existed at that time. Government is empowered to make rules prescribing some more qualifications. Apart from prescribing the qualification of the Judges of Family Courts, the Central Government has no role to play in the administration of this Act. Different High Courts have laid down different rules of the procedure. However, this lack of uniformity could also be one of the reasons behind the fact that family disputes are still being heard by civil courts. Family courts also need to align themselves with womens organizations and NGOs dealing with the welfare of families, women and children. Further, the substantive aspect of the law cannot be ignored because it is what cases are made of. A practical example of a problem with the substantive law is that many times, the husband in a divorce cases resorts to reconciliation mainly because he wants to escape the responsibility of giving maintenance to his wife. Furthermore, the lack of uniformity regarding the rules laid down by different states also leads to confusion in its application.
http://pta-yogyakarta.go.id/english/artikel/lawarticles/165-family-courts-in-india-anoverview.html
The Family Courts Act, 1984. Memorandum to the Chairman, Karnataka Law Commission for Judicial Reforms, by the Public Relations Officer, Save Indian Family Foundation, Bangalore. Jamwal, N., Have Family Courts lived up to Expectations? Mainstream, Vol XLVII No 12, March 7, 2009. Mathew, P.O. and Bakshi, P.M., Family Courts. Indian Social institute. Delhi, 1986 http://www.blogcatalog.com/blog/voice-of-women india/e9ff5198e7da7b5e528e004799249bdf

Military Justice
The Manual of Military Law and Regulations spells out rules and procedures for the investigation, prosecution, and punishment of military offenses and crimes in the

armed forces. Basic authority rests in the constitution, the Army Act of 1954, the Air Force Act of 1950, and the Navy Act of 1957. The army and air force have three kinds of courts. They are, in descending order of power, the General Court, which conducts general courts-martial; the District Court; and the Summary General Court. Additionally, the army has a fourth kind of court, the Summary Court. Local commanding officers conduct this court with powers similar to nonjudicial punishment in the United States armed forces. The navy uses general courts-martial in addition to the nonjudicial powers established for commanders in the Navy Act. Courts-martial can be convened by the prime minister, minister of defence, chief of staff of the service concerned, or other officers so designated by the ministry or the chief of staff. There are channels of appeal and stages of judicial review, although procedures differ among the three services. Members of the armed forces remain subject concurrently to both civilian and military law, and criminal courts with appropriate jurisdictions assume priority over military courts in specific cases. With the approval of the government, a person convicted or acquitted by a court-martial can undergo retrial by a criminal court for the same offense and on the same evidence. Once tried by a civilian court, however, one cannot be tried by a military court for the same offense. Each of the three services has its own judge advocate general's department, relatively free and independent of the other branches in the discharge of its judicial functions. The various departments have officers among the adjutant general's staff at army headquarters, in the chief of personnel's staff at navy headquarters, and in the administration staff of the air force headquarters.

< http://www.country-data.com/cgi-bin/query/r-6159.html>