Judiciary of India

 

Judiciary of India

mian ashraf asmi

advocate high court

The Indian Judiciary is partly a continuation of the British legal system established by the English in the mid-19th century based on a typical hybrid legal system in which customs, precedents and legislative law have validity of law. The Constitution of India is the supreme legal document of the country. There are various levels of judiciary in India — different types of courts, each with varying powers depending on the tier and jurisdiction bestowed upon them. They form a strict hierarchy of importance, in line with the order of the courts in which they sit, with the Supreme Court of India at the top, followed by High Courts of respective states with district judges sitting in District Courts and Magistrates of Second Class and Civil Judge (Junior Division) at the bottom. Courts hear criminal and civil cases, including disputes between individuals and the government. The Indian judiciary is independent of the executive and legislative branches of government according to the Constitution.

Before the arrival of the British in India, India was governed by laws based on The Arthashastra, dating from the 400 BC, and the Manusmriti from 100 AD. In fact there existed two codes of laws one the Hindu code of laws and the other Muslim code of laws. They were influential treatises in India, texts that were considered authoritative legal guidance. Unfortunately, manusmriti's central philosophy is always discrimination and exploitation of illiterate and downtrodden populations of Indian subcontinent for over two thousand years by upper brahmanical class .^[1] The Judiciary,the Executive, and the Legislature were the same person the King or the Ruler of the Land. But the villages had considerable independence, and had their own panchayth system to resolve disputes among its members. Only a bigger feud merited a trans village council. This tradition in India continued beyond the Islamic conquest of India, and through to the Middle Ages. Islamic law "The Sharia" was applied only to the Muslims of the country. But this tradition, along with Islamic law, was supplanted by the common law when India became part of the British Empire. The history of Modern Judicial System in India starts from there.

Supreme Court of India

On 26 January 1950, when India became a Sovereign Democratic Republic, the Supreme Court of India was born in Delhi. The inauguration took place in the Princes Chamber in the Parliament building complex which also housed both the Rajya Sabha and the Lok Sabha, also known as the Council of States and the House of the People, respectively. It was here, in this Chamber of Princes, that the Federal Court of India had sat for 12 years between 1937 and 1950. This was to be the home of the Supreme Court for years that were to follow its creation, until the Supreme Court of India acquired its own building in 1958.^[2]

The inaugural proceedings were simple, but impressive. They began at 9.45 a.m. when the Judges of the Federal Court – Chief Justice HJ Kania and Justices Saiyid Fazl Ali, M. Patanjali Sastri, Mehr Chand Mahajan, Bijan Kumar Mukherjea and Sudhi Ranjan Das – took their seats. In attendance were the Chief Justices of the High Courts of Allahabad, Bombay, Madras, Orissa, Assam, Nagpur, Punjab, Saurashtra, Patiala and the East Punjab States Union, Mysore, Hyderabad, Madhya Bharat and Travancore-Cochin. Along with the Attorney General for India, Pankaj Singh Kushwah were present the Advocate Generals of Bombay, Madras, Uttar Pradesh, Bihar, East Punjab, Orissa, Mysore, Hyderabad and Madhya Bharat. Present too, were Prime Minister, other Ministers, Ambassadors and diplomatic representatives of foreign States, a large number of Senior and other Advocates of the Court and other distinguished visitors.

Taking care to ensure that the Rules of the Supreme Court were published and the names of all the Advocates and agents of the Federal Court were brought on the rolls of the Supreme Court, the inaugural proceedings were over and put under part of the record of the Supreme Court.

After its inauguration on January 28, 1950, the Supreme Court commenced its sittings in a part of the Parliament House. The Court moved into the present building in 1958. The building is shaped to project the image of scales of justice. The Central Wing of the building is the Centre Beam of the Scales. In 1979, two New Wings – the East Wing and the West Wing – were added to the complex. In all there are 15 Court Rooms in the various wings of the building. The Chief Justice's Court is the largest of the Courts located in the Centre of the Central Wing.

The original Constitution of 1950 envisaged a Supreme Court with a Chief Justice and 7 puisne Judges – leaving it to Parliament to increase this number. In the early years, all the Judges of the Supreme Court sat together to hear the cases presented before them. As the work of the Court increased and arrears of cases began to accumulate, Parliament increased the number of Judges from 8 in 1950 to 11 in 1956, 14 in 1960, 18 in 1978 and 26 in 1986. As the number of the Judges has increased, they sit in smaller Benches of two and three – coming together in larger Benches of 5 and more only when required to do so or to settle a difference of opinion or controversy.

The Supreme Court of India comprises the Chief Justice and 30 other Judges appointed by the President of India, as the sanctioned full strength. Supreme Court Judges retire upon attaining the age of 65 years. In order to be appointed as a Judge of the Supreme Court, a person must be a citizen of India and must have been, for at least five years, a Judge of a High Court or of two or more such Courts in succession, or an Advocate of a High Court or of two or more such Courts in succession for at least 10 years or he must be, in the opinion of the President, a distinguished jurist. Provisions exist for the appointment of a Judge of a High Court as an Ad-hoc Judge of the Supreme Court and for retired Judges of the Supreme Court or High Courts to sit and act as Judges of that Court.

The Constitution seeks to ensure the independence of Supreme Court Judges in various ways. A Judge of the Supreme Court cannot be removed from office except by an order of the President passed after an address in each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of members present and voting, and presented to the President in the same Session for such removal on the ground of proved misbehavior or incapacity. A person who has been a Judge of the Supreme Court is debarred from practicing in any court of law or before any other authority in India.

The proceedings of the Supreme Court are conducted in English only. Supreme Court Rules, 1966 are framed under Article 145 of the Constitution to regulate the practice and procedure of the Supreme Court.

The Supreme Court of India is the highest court of the land as established by Part V, Chapter IV of the Constitution of India. According to the Constitution of India, the role of the Supreme Court is that of a federal court, guardian of the Constitution and the highest court of appeal.

Articles 124 to 147 of the Constitution of India lay down the composition and jurisdiction of the Supreme Court of India. Primarily, it is an appellate court which takes up appeals against judgments of the High Courts of the states and territories. However, it also takes writ petitions in cases of^[3] serious human rights violations or any petition filed under Article 32 which is the right to constitutional remedies or if a case involves a serious issue that needs immediate resolution. The Supreme Court of India had its inaugural sitting on 28 January 1950, and since then has delivered more than 24,000 reported judgments.

High Courts of India

There are 21 High Courts at the State level. Article 141 of the Constitution of India mandates that they are bound by the judgments and orders of the Supreme Court of India by precedence. These courts have jurisdiction over a state, a union territory or a group of states and union territories. Below the High Courts are a hierarchy of subordinate courts such as the civil courts, family courts, criminal courts and various other district courts. High Courts are instituted as constitutional courts under Part VI, Chapter V, Article 214 of the Indian Constitution.

The High Courts are the principal civil courts of original jurisdiction in the state along with District Courts which are subordinate to the High courts. However, High courts exercise their original civil and criminal jurisdiction only if the courts subordinate to the High court in the state are not competent (not authorized by law) to try such matters for lack of pecuniary, territorial jurisdiction. High courts may also enjoy original jurisdiction in certain matters if so designated specifically in a state or Federal law. e.g.: Company law cases are instituted only in a High court.

However, primarily the work of most High Courts consists of Appeals from lower courts and writ petitions in terms of Article 226 of the Constitution of India. Writ Jurisdiction is also original jurisdiction of High Court. The precise territorial jurisdiction of each High Court varies.

Judges in a High Court are appointed by the President of India in consultation with the Chief Justice of India and the governor of the state. High Courts are headed by a Chief Justice. The Chief Justices are ranked #14 (in their state) and #17 (outside their state) in the Indian order of precedence. The number of judges in a court is decided by dividing the average institution of main cases during the last five years by the national average, or the average rate of disposal of main cases per judge per year in that High Court, whichever is higher. The Calcutta High Court is the oldest High Court in the country, established on 2 July 1862. High courts which handle a large number of cases of a particular region, have permanent benches (or a branch of the court) established there.

District Courts of India

The District Courts of India are established by the State governments in India for every district or for one or more districts together taking into account the number of cases, population distribution in the district. They administer justice in India at a district level. These courts are under administrative control of the High Court of the State to which the district concerned belongs. The decisions of District court are subject to the appellate jurisdiction of the concerned High court.^[4]

The district court is presided over by one District Judge appointed by the state Government. In addition to the district judge there may be number of Additional District Judges and Assistant District Judges depending on the workload. The Additional District Judge and the court presided have equivalent jurisdiction as the District Judge and his district court.^[5] The district judge is also called "Metropolitan session judge" when he is presiding over a district court in a city which is designated "Metropolitan area" by the state Government.^[6]

The district court has appellate jurisdiction over all subordinate courts situated in the district on both civil and criminal matters. Subordinate courts, on the civil side (in ascending order) are, Junior Civil Judge Court, Principal Junior Civil Judge Court, Senior Civil Judge Court (also called sub-court). Subordinate courts, on the criminal side (in ascending order) are, Second Class Judicial Magistrate Court, First Class Judicial Magistrate Court, Chief Judicial Magistrate Court.

Issues

According to the World Bank, "although India's courts are notoriously inefficient, they at least comprise a functioning independent judiciary"^[7] A functioning judiciary is the guarantor of fairness and a powerful weapon against corruption. But people’s experiences in fall far short of this ideal. Corruption in the judiciary goes beyond the bribing of judges. Court personnel are paid off to slow down or speed up a trial, or to make a complaint go away. Judges are also subject to pressure from above, with legislators or the executive using their power to influence the judiciary, starting with skewed appointment processes. Citizens are often unaware of their rights, or resigned, after so many negative experiences, to their fate before a corrupt court. Court efficiency is also crucial, as a serious backlog of cases creates opportunities for demanding unscheduled payments to fast-track a case.^[8]

Judicial backlog

Indian courts have large backlogs. For instance, the Delhi High Court has a backlog of 466 years according to its chief justice.This is despite the average processing time of 4 minutes and 55 seconds in the court.In Uttam Nakate case, it took two decades to solve a simple employment dispute. However it need to be mentioned that the concept of backlogs doesn't describe the actual reason for some many cases lying in the courts. Rather the term "backlog" has been misused and the term "pendency" is the right word for describing the large number of cases pending in the courts today. As could be understood, the largest number of cases that are actually pending in the Indian Courts are that of minor Motor Vehicle Cases, petty crimes such as stealing, abusing, insult, slap, etc. It is an established fact which the Govt. of India accepts that there is 40% shortage of judicial staff. Opposition and ruling party's corrupt politicians profit from the delays in the system.

On January 12, 2012, a Supreme Court bench said that people's faith in judiciary was decreasing at an alarming rate, posing a grave threat to constitutional and democratic governance of the country. It sincerely acknowledged few of the serious problems such as –

1. Large number of vacancies in trial courts,
2. Unwillingness of lawyers to become judges,
3. Failure of the apex judiciary in filling vacant HC judges posts.

It wanted to seek answers from the government on amicus curiae's suggestion that access to justice must be made a constitutional right and consequently the executive must provide necessary infrastructure for ensuring every citizen enjoyed this right. It also wanted the Government of India to detail the work being done by the National Mission for Justice Delivery and Legal Reforms.^[10][11][12]

Judicial corruption

Corruption is rampant in India's courts. According to Transparency International, judicial corruption in India is attributable to factors such as "delays in the disposal of cases, shortage of judges and complex procedures, all of which are exacerbated by a preponderance of new laws".^[13] Most disturbing is the fact that corruption has reached the highest judicial forum i.e. Supreme Court of India. Some notable cases include:

1. In December 2009, noted social activist, campaigner for judicial accountability and a Supreme Court lawyer Prashant Bhushan in response to the notice of contempt issued by the Supreme Court (for his interview to a news magazine in which he had said, "out of the last 16 to 17 Chief Justices, half have been corrupt"), filed an affidavit standing by his earlier comments saying: "It is My Honest And Bonafide Perception".^[14] Later In September 2010, he submitted a supplementary affidavit in which he submitted evidence to back his allegations.^[15] In November 2010, former Law Minister, Shanti Bhushan echoed Prashant Bhushan's claim saying: “It is my firm belief that there is a lot of corruption in judiciary. I am saying the same thing which Prashant Bhushan had said. The question of apology does not arise. I will rather prefer to go to jail. The judiciary cannot be cleansed unless the matter is brought into the public domain”.^[16]
2. In June 2011, a very widely respected former Chief Justice of India J. S. Verma echoed these views saying that "certain individuals with doubtful integrity were elevated within the higher judiciary" He cited the case of Justice M. M. Punchhi, whose impeachment had been sought by the campaign for judicial accountability. Justice Verma said he was willing to permit the allegations to be probed but the political executive refused to allow this. Justice Verma further explained, "Because the allegations, if proved, were serious and therefore they required to be investigated, so that one could know whether they were true or not." He acknowledged that Justice Punchhi was later elevated to CJI despite facing "serious allegations". Justice Verma also talked about another former CJI K G Balakrishnan's continuance as National Human Rights Commission chairman. Justice Verma said, "He should have demitted long back and if he doesn't do it voluntarily, the government should persuade him to do that, otherwise, proceed to do whatever can be done to see that he demits office."^[17]
3. In November 2011, a former Supreme Court Justice Ruma Pal slammed the higher judiciary for what she called the seven sins. She listed the sins as:
1. Turning a blind eye to the injudicious conduct of a colleague
2. Hypocrisy – the complete distortion of the norm of judicial independence
3. Secrecy – the fact that no aspect of judicial conduct including the appointment of judges to the High and Supreme Court is transparent
4. Plagiarism and prolixity – meaning that very often SC judges lift whole passages from earlier decisions by their predecessors and do not acknowledge this – and use long-winded, verbose language
5. Self Arrogance – wherein the higher judiciary has claimed crass superiority and independence to mask their own indiscipline and transgression of norms and procedures
6. Professional arrogance – whereby judges do not do their homework and arrive at decisions of grave importance ignoring precedent or judicial principle
7. Nepotism – wherein favors are sought and dispensed by some judges for gratification of varying manner.^[18]

Reforms

E-Courts Mission Mode Project

The E-courts project was established in the year 2005. According to the project, all the courts including taluk courts will get computerized. As per the project in 2008, all the District courts were initialized under the project. In 2010, all the District court were computerized. The entry of back log case has started. The IT department had one system officer and two system assistants in each court. They initiated the services in the Supreme Court in June 2011. The case lists and the judgements of most district courts are available in http://lobis.nic.in. in http://judis.nic.in is used to connect all High Courts and Supreme Court judgements and cause list. These websites are updated daily by a technical team. Now the establishment work is going on taluk courts.The project also includes producing witnesses through video conferencing. Filing cases, proceedings, and all other details will be in computers. Each district court contains 1 system officer and 2 system assistants. This technical manpower is involved in training the staff, updating web sites.