India | Asian Encyclopedia of Law

Judicial System

Indian Judicial System

The judicial system in India, in general, has managed to safeguard the basic spirit of the Indian Constitution and to protect the fundamental rights of the country’s ordinary citizens, not only of the most privileged. But it is true that it has also been severely criticized for exhibiting strong activism.

The judiciary is an important organ of the Indian state and has a vital role in the proper functioning of the country as a democracy based on the rule of law. It is the courts, as in many countries, but more so in the case of those who follow the “common law” system those who expose and define the true meaning and functioning of the laws.

The editors of the Indian Constitution had a firm faith in the supremacy of the law and argued that it was the only security for the disciplined and orderly growth of Indian democracy. These founders said, moreover, that the judiciary had to play a crucial role in a system of federal government like India, where power was divided between the central government and the governments of state units, also constituents of the Nation, and that it was probable, after its analysis of the Indian reality of the time, that disputes arose concerning the scope of power and authority between the different central and territorial powers.

Disputes between citizens, as well as between citizens and the State, or administrative bodies with legal status, had to be resolved through litigation. Only an independent and impartial judiciary could resolve these controversies effectively and decisively.

Initially, Indian judges were influenced by the British concept of justice, as happened with virtually all Commonwealth countries. But as India’s socio-economic and political contexts began to change, the judiciary had to be remodeled and adapted to the new realidadades, as a result. The dispensed court order, had to do so, of many stereotypes and began to resolve disputes in public interest litigation, approving resolutions, many times, against the malfunction of the executive. He issued numerous warnings, and argued that legislative practice, the task of the legislative order, had no right to destroy the basic spirit of the Indian Constitution. Thus, the judiciary arose, or proclaimeded, but was effective in such a endeavor, as the guardian of the Constitution and the protector of the rights of Indian citizens. In the latter effort, their more progressive approach was decisive than the normative production for women’s rights.

History: Judicial systems before independence

In REALIDASD, it is partially true that the modern judicial system in India, as stated above, was British. It also had deep roots in the socio-political base of India. India, at that time, had several sets of rights, and its people were governed by different systems. The ancient scriptures, especially the Shāstra Dharma, took seriously the dispensation or application, by an authority, of justice. The king, in that tradition, was entrusted with the supreme authority of the administration of justice. His palace court was the highest court of appeal, as well as an original court in cases of vital importance. He was assisted by a President of justice and other judges. The judges came from the upper castes, usually Brahmans. No Shūdra (member of an inferior caste) or woman could become, according to such writings, in Judge. The officers under the King’s authority presided over the courts of the city and the district. Trade unions ( “Sreni “) and corporations were authorized to exercise effective jurisdiction over their members. Pūgā (commercial organization that was less powerful than the Sreni, or guild) solved the civil disputes between the family members. Local village councils, or Kulani, also played an important role in the resolution of civil and criminal cases, in this case when their importance or complexity were minor. Decisions of each High Court superseded decisions taken by their lower courts. Each lower court had to respect, as is now the case, the decision of each superior Court.

Justice was not administered by a single individual. It preferred the collective judicial decisions carried out by two or more judges. There were No lawyers, although people well versed in the laws of the Smriti (Law books) could represent a party in the courts. The judgments of the Shāstra Dharma took precedence in criminal cases. Both in civil and criminal cases, the defendant’s social status was considered, as well as, in relation to the test, that of the witness. The defendant, according to such traditions, could provide or appoint witnesses in his defense to prove his innocence. In this system, higher-caste people were punished more lightly than lower-caste criminals.

During the time of Muslim domination, the administration of justice continued to be a matter of great concern for the state of that time. The Islamic normative provisions, or Shari’a, were the basis, as in so many other Muslim countries, of the administration of justice. It was considered the duty of the rulers to punish criminals and maintain law and order.

The British exploited India’s traditional judicial systems for their own benefit for some time. In 1772, Warren Hastings took the responsibility of imparting justice. Both in the civil and penal order, in those territories. He established a civil court (Diwani Adalat) and a criminal court (Faujdari Adalat) in each district. The civil court was presided over by a collector, who administered the justice with the help of Indian subordinates. An Indian officer presided over the criminal Court; Qazi S (judges) and muftis (theologians) helped him. In civil courts, Hindu law applied in cases related to Hindus, and Islamic law applied in cases involving Muslims.

In criminal courts, only Muslim rule was applied.

For a time, it is true, Supreme Court judges, established in 1774, tried to uniformly apply English law. However, this approach received strong opposition from the Indians. Therefore, the law of 1781 restricted the application of English law to the English in India alone. But soon the conditions changed, and the need for defined codes, applicable to all Indian subjects, was urgent. Lord Cornwallis took the initiative to apply British laws in India, implying the spirit of equality for all before the law. It was also his responsibility to introduce a secular justice system in India. The Cornwallis code, or the Bengal Regulations, obliges the courts to make decisions on the rights of persons and the property of the Indians in accordance with the provisions of the regulations.

To a large extent, the rules regulated the personal laws of Hindus and Muslims, them in clear terms. The regulations were published in English and in the main Indian languages. To do so, an administration of justice was established based on written laws and regulations, rather than the vague customs and the will of the ruler. This was, in truth, a landmark in the history of India’s modern judicial system.

Cornwallis also separated the executive’s judiciary, following the scheme theorized by Montesquieu. One person, he considered, could not control both wings in an honest and efficient manner. To make the judicial system more effective, penal courts of the provincial circuit were established. The first provincial civil courts were initially established in Dhaka, Murshidabad, Kolkata and Patna. The two courts or courts established at the district level were presided over by English judges. On the other hand, the Munsif courts (local courts dealing with civil matters) and the registry courts (local courts dealing with the purchase and sale of land) were headed, from the outset, by Indian judges.

The Sadr Diwani (a Supreme Court dealing with civil affairs) and and the Sadr Nizamat (the Superior Criminal Court) were the most important courts in Calcutta, and the Governor-General would preside over both. The death penalty in India could only be sentenced by the court of Sadr Nizamat, just as the King’s Court, or the private Council, in England, was then the highest court of appeal.

Governor General William Bentinck abolished, later, circuit courts. In 1833, an Indian Law Commission, under the mandate of TB Macaulay, was established with the aim of encoding the system of laws and judicial procedures of India. The Indian Penal code was finally introduced in 1861. The British Parliament passed the Indian Higher Courts Act that same year, after which several higher courts were established in the provinces. The Code of Criminal Procedure was promulgated eleven years later, in 1872. The Indian Federal Court was established by the Indian Government Act of 1935. This court was inaugurated in new Delhi on October 1, 1937, two years before the beginning of the Second World War. He was granted three types of jurisdiction: original, appellate and advisory.

The British thus introduced a judicial system in India, which helped the Indians in different ways. In theory, all citizens, Indians or not, were equal before the law. In British India, however, this was never true in practice. The British who lived in India, often by a consciousness of racial superiority, were opposed to any measure by which they could be judged by Indian judges. The British bureaucracy and the police enjoyed, de facto, arbitrary powers. In practice, therefore, the system failed to achieve its objectives of establishing a rule of law and equality before the law.

After independence

India reached independence on August 15, 1947, and its constitution was adopted on January 26, 1950. A single integrated system was accepted.

The Supreme Court

At the height of the entire judicial system is the Supreme Court. This court receives an independent status and all laws declared by this court are binding on all Indian courts. Initially, this court had a chief judge and seven other judges. The number of judges, however, has been increasing, as more issues reached their hands, to twenty-five. The President of India appoints the President of Justice, as well as the other judges, in consultation with the President of the Tribunal. The judges hold positions only until they are sixty five years old. They can also be removed by the president, but only when they are prosecuted by both chambers of Parliament.

The Supreme Court has original, appealing and advisory jurisdiction. It has exclusive jurisdiction in disputes between the central government and one state, or between one state and another. The Supreme Court also has exclusive jurisdiction over matters arising in the Indian territories, and is the custodian of fundamental rights, a power that is widely practiced in practice. This High Court has extended its powerful and long-standing hands to protect anyone whose fundamental rights, in their understanding, have been violated. Over time, they began to have public interest in their decisions, as occurred in many countries.

The main task of the Supreme Court is its role in the appeal. It plays the role of final arbitrator in constitutional matters, as is common in the American continent. It may decide, in appeal, against the judgments of the higher courts (see below), ordinary courts and special tribunals. Their judgment is definitive and can only be reviewed by itself.

The Supreme Court may advise on any matter of right or fact of public interest that may be referred to the President’s consideration. The Supreme Court is a court of record, and its proceedings are recorded for perpetual verification and testimony. The Supreme Court enjoys the power of judicial review. It can be pronounced on the constitutional validity of the laws passed by the legislature and the measures taken by the administrative authorities.

The High Court

At the state level, the Indian Constitution created a high court, which is the highest judicial administrative body in the State in which its headquarters are located. In other words, there is a higher court in every state of India, where it occupies the judicial cusp.

The President of the High Court and the rest of the judges are appointed by the President of the Supreme Court. As requirements, an Indian citizen who has held a judicial position for ten years or has been a lawyer for two years may be appointed Superior Court judge. The Supreme Court judges hold office until sixty two years. The way of their elimination is the same as that of a Supreme Court judge. Judges can be transferred from one superior court to another.

The High Court exercises supervision over all courts and tribunals within its jurisdiction. It can take steps to ensure that the lower courts properly fulfil their role. You can transfer cases from a lower court to other lower courts. The High Court may issue orders for the execution of fundamental rights. It may issue lawsuits even in cases where an ordinary legal right has been infringed. The High Court is also a registration court and is the highest court of appeal in the State in both civil and criminal cases within its jurisdiction. This court has advisory power, and the governor of the state is occasionally seeking advice on some important matters.

The lower courts

Except for some local variations, subordinate courts throughout the country are structured in a uniform manner. They operate under the supervision of the High Courts. There are civil and criminal courts in each district. When the judge hears the civil lawsuits, he is called a district judge, and when he presides over the criminal court, he is called the session judge. In addition to these courts, the courts subordinated to the district judge, the Munsif court and other courts are also listed as district-level courts. At the subdivision level, similar courts work smoothly.

Other organs

The panchayats, or village councils, also play, on a daily basis, a vital role at the local level in the lower judicial system. The Mukhiya (head of the Council of the People) and the Sarpanch (figure that is in charge of the judicial matters in the villages) are endowed with some judicial powers. Inquiries must be conducted, and punishments are imposed on offenders.

The attorney general is appointed by the President of India. It is your duty to advise the Government of India, including the President, on legal matters. The Attorney-General has the capacity to appear in any court in the territory of India, and also the right to speak in any of the Chambers of Parliament or in any of its committees, subject to certain parliamentary procedures.

The Attorney general and the additional attorney general are two other important legal authorities advising the Government of India on legal matters. They may appear before the Supreme Court or any higher court on behalf of the Government of India, if they so deem necessary.

Subsequent developments in the Judicial system

The Indian courts of justice, despite all the organisational improvements mentioned above, however, were unable to cope with the challenges posed by modern socio-economic evolution. As a result, several courts have been established which are not strictly courts in the traditional sense. In this case, a member of a court adopts a functional approach rather than theoretical and legalistic. The courts, in this way, do their jobs more quickly, economically and effectively. Central administrative Tribunals were formed to address the service issues of the employees of the government. The President of India appoints the President and Vice-President of these tribunals, in consultation with the President of the Supreme Court.

Other important tribunals are the following: The Court of Appeals for customs revenue and excise duties, monopolies and Restrictive Business Practices Commission, National Commission for the Resolution of consumer disputes, courts and U.S. appellate courts, currency appeals, and industrial tribunals. The Electoral commission was created with the aim of holding free and fair elections in the country. The courts of martial justice at various levels have been set up to handle cases involving military personnel.

Family courts have been established to resolve divorce cases and to promote conciliation to ensure rapid settlement of marriage-related disputes. The cases are also resolved by the arbitration tribunals. The Lok Adalats, initially initiated and animated by a few Supreme Court judges, promotes the voluntary settlement of disputes in an economic and expeditious manner.

In order to make justice more democratic, a system of Legal aid was created, with a foundational idea that was similar to other similar bodies in other Commonwealth countries and in England itself, for citizens whose annual income does not exceed A certain amount. Legal advisory boards and counseling were also created to improve the judicial system.

Another breakthrough was the emergence of the public-interest Litigation movement in the 1970, with the aim of making the judicial system accessible to the lower socioeconomic strata of society. People with social conscience and action groups helped, with the intention of realizing justice, to those whose rights had been violated and who alone could not approach a court. The complaints filed against the authorities were also, in several cases, investigated by commissions appointed by the Tribunal. On the basis of their reports, cases were filed in the High Court and the Supreme Court.

The Supreme Court went from being a separate positivist institution to an institution that was an active player of big social issues. Therefore, he was accused of excessive activism. Judicial activism was an affirmation of the judiciary in the cases in which it understood, the judiciary, which faced legislative arbitrations or executive abuses. The famous trial of 1975, when Indira Gandhi was disposed and declared null, his election to Parliament was one of those cases.

Similarly, the higher courts and the Supreme Court on many occasions approved restrictions on the operation of the executive. It was argued by numerous Indian politicians, of course, that the judiciary was invading, in this way, the jurisdiction of the executive branch, the legislature and even other institutions. However, for advocates of such judicial activity, an essential aspect of a constitutional judicial system is the duty of the courts to safeguard the interests of the common citizen.

Consequences

As a result of the numerous public-interest litigation and its judicial decisions, the weaker sections of the Indian population consider, since the beginning of the century, the courts as their protectors. These tribunals, once inaccessible to them, are now perceived, on numerous occasions, as a source of material justice. However, despite these positive developments, the costs of litigating in India, and the excessive delays in the decision of cases that come to court in the country remain the general tonic in the modern judicial system.

The nature of the judicial process is really very tedious. Examining, questioning, and examining witnesses in court takes too long, as in so many countries. In general, criminals and influential people, through procedural strategies of lawyers, make the process too long in court. As in so many guarantor countries, justice is delayed as a result, and often this has the undesirable effect that justice is denied. The high incidence of solutions also points to the failure of the judicial system, at least for some. The judicial process has become technical and cumbersome; Lawyers take full advantage of this complexity and in some cases exploit financially the litigants, precisely because of the tortuosity of the system.

Resources

See Also

Further Reading

Austin, Granville. Working a Democratic Constitution: The

Indian Experience. New Delhi and New York: Oxford University Press, 2000.

Epp, Charles. The Rights Revolution: Lawyers, Activists, and

Supreme Courts in Comparative Perspective. Chicago: University of Chicago, 1998.

Garlander, Marc. Competing Equalities. Berkeley: University of California Press, 1984.

Kirpal, B. N., Ashok H. Desai, Gopal Subramanium, Rajeev

Dhawan, and Raju Ramachandran. Supreme but not Infallible. Delhi: Oxford University Press, 2000.

Kohli, Atul. The Success of India’s Democracy. Cambridge,

U.K.: Cambridge University Press, 2001. Kulshreshtha, V. D. Landmarks in Indian Legal and Constitutional History. Lucknow: Eastern Book Company, 1984. Verma, S. K., and Kusum. Fifty Years of the Supreme Court of

India: Its Grasp and Reach. New Delhi and New York: Oxford University Press, 2000.

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