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Court Systems: India
Court Systems: India RG Menezes, University of Dammam, Dammam, Saudi Arabia FNP Monteiro, A. J. Institute of Medical Sciences and Research Centre, Mangalore, India K Krishna, All India Institute of Medical Sciences, New Delhi, India r 2016 Elsevier Ltd. All rights reserved.
Abstract India is described as the world’s largest functioning democracy, with its enormous population and cultural diversity. The Indian legal system is an integration of many legal traditions which have been part of different civilizations and cultures that have ruled India over the centuries. An independent judiciary at the heart of the structure of constitutional control guarantees a trustworthy system of checks and balances in governance. The judiciary also acts as an instrument of social change and development. In recent years, the Supreme Court of India has played an ‘activist’ role in influencing Indian society.
Historical Background of the Indian Legal System The Indian legal system refers to the system of law prevalent in India (Bose, 2010; Gupta, 2006). India’s legal system is one of the oldest in the world. Its law and jurisprudence evolved over many centuries and assimilated the traditions and lives of its diverse people. India has been the home of four major legal traditions: Hindu (Dharmashastras), Muslim (Sharia), British (Privy Council), and that of modern, sovereign India. Even though each of the last three legal systems was established in India as the result of dramatic political upheaval, none has ever totally superseded its predecessors, retaining important elements of the earlier traditions (Galanter and Hayden, 1988). In the Hindu tradition, law is dharma, which involves righteous or appropriate conduct, synonymous with the English concepts of law, morality, duty, and obligation (Galanter and Hayden, 1988). Muslim rulers brought in a new system – the Islamic law (Sharia) – which had royal courts in cities and administrative centers that exercised their influence over a wide variety of issues such as civil, criminal, commercial, and family matters. With the entry of the East India Company, a third legal tradition was introduced in the seventeenth century. The East India Company’s charter gave it the power to discipline its own servants, and an accord with the Mughal rulers accepted this power in the form of company courts, which were later converted into royal courts deriving their authority directly from the sovereign and not from the company, with appeal to the Privy Council in London. Since an appeal to the Privy Council was very costly, contrary to the self-respect of the Indian ethos, and beyond the means of ordinary persons, there was a mounting demand for establishment of a supreme court in India. This resulted in the introduction of the Federal Court of India, involving allocation of powers between the center and the
Encyclopedia of Forensic and Legal Medicine, Volume 1
constituent units under the Government of India Act of 1935. The jurisdiction of the Federal Court was very limited and appeals from the Federal Court would go to the Privy Council. After India’s independence in 1947, the legal system again changed dramatically. There was a demand from the Indian political leaders to enlarge the jurisdiction of the Federal Court and grant more powers to it and to achieve freedom in a real sense, which led to the abolition of any role of the Privy Council in the functioning of the Federal Court after 10 October 1949. The Constitution of India, which came into effect on 26 January 1950, created an integrated, hierarchical judiciary, headed by a Supreme Court. All executive, legislative, and judicial matters in the country became to be governed and guided by the Constitution of India. The Constitution resolutely changed the direction of a system originally designed for the preservation of colonial welfare in India into one with social welfare as its core. Indian law began to be fine-tuned for Indian aspirations in the course of judicial pronouncements and legislative action (Galanter and Hayden, 1988; Bar Council of India, 2015).
The Constitution of India and the Indian Legal System Part V, Chapter IV (Articles 124 to 147) of the Constitution of India describes the essentials of the ‘Union Judiciary,’ i.e., the Supreme Court (Bose, 2010; Sharma, 2007; Srivastava, 2008; Supreme Court of India, 2008). The Supreme Court of India consists of a Chief Justice of India and 30 other judges. The president appoints every judge of the Supreme Court after consultation with judges of the Supreme Court and the High Courts. The Supreme Court verdicts are delivered by benches comprising of two or three judges, except in matters pertaining to constitutional importance where five or more judges constitute
doi:10.1016/B978-0-12-800034-2.00395-5
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Court Systems: India
the bench. A Supreme Court judge holds office until he reaches the age of 65 years. The Supreme Court will function in Delhi or in such other location as the Chief Justice of India may, with the endorsement of the president, periodically decides. Chapter V (Articles 214 to 231) of the Constitution of India describes the essentials of ‘The High Courts in India.’ Each state will be served by a High Court. There are 24 High Courts across India, three of which have jurisdiction over more than one state. A common High Court for two or more states may be established by an enactment of the Parliament. The Chief Justice of the High Court is the presiding officer of a High Court. The president appoints other judges of the High Court in consultation with the Chief Justice of India, the governor of the state concerned, and the Chief Justice of the High Court concerned. A High Court judge holds office until he reaches the age of 62 years. Chapter VI (Articles 233 to 237) of the Constitution of India describes the essentials of ‘The Subordinate/Subsidiary Courts,’ i.e., the different layers of courts at the district level. The appointment of district judges will be made by the governor of the state in consultation with the presiding officer of the High Court.
Hierarchy of Courts in India and Their Powers India has an integrated judicial system. The Supreme Court of India is at the apex of the legal structure, which exercises jurisdiction in diverse forms, namely appellate, original, advisory, and those powers conferred under several statutes of the Constitution of India (Bose, 2010; Chandrachud et al., 2007; Committee on Reforms of Criminal Justice System, 2003; Supreme Court of India, 2008). The High Courts in the various states are at the next level, second only to the Supreme Court. The High Courts also exercise appellate, original, and advisory jurisdiction, and those powers conferred under several statutes of the Constitution of India as well as the power of supervision over all the courts in their individual states. The third level is that of the subordinate/subsidiary judiciary at the district level, which in turn consists of various levels of judges (on both the civil and criminal sides) whose jurisdiction is based on regional and pecuniary limits. In addition to the aforementioned courts there are a number of other courts and tribunals established to govern specific areas of the law of the land. The Supreme Court
Decisions by the Supreme Court are binding on all courts within the territory of India (Bose, 2010; Mate, 2015). The jurisdiction of the Supreme Court can broadly be categorized as: 1. Appellate jurisdiction 2. Original jurisdiction
3. Advisory jurisdiction 4. Other powers. Appellate jurisdiction
Appeals are permitted by the Supreme Court of India against the pronouncement of a High Court under the following circumstances: i. if a High Court approves that the matter in question deals with the interpretation of the Constitution (Article 132 of the Constitution of India, 1950); ii. if a High Court approves that the case involves a considerable question of law and it needs to be adjudicated by the Supreme Court (Article 133 of the Constitution of India, 1950); iii. in a criminal proceeding of a High Court if it (1) has adjudicated an appeal regarding acquittal of an accused person and reversed it to death sentence or imprisonment for more than 10 years, or (2) has withdrawn for trial before itself any proceeding from any court subordinate to it and has in that trial found the accused guilty and sentenced him to death or imprisonment for more than 10 years, or (3) approves that the case is an appropriate one to be adjudicated by the Supreme Court (Article 134 of the Constitution of India, 1950). The Constitution of India allows the Supreme Court to, at its discretion, grant special leave to appeal from any pronouncement in any issue adjudicated by any court or tribunal in the territory of India except a court or tribunal constituted by or under any law relating to the armed forces (Article 136 of the Constitution of India, 1950). Original jurisdiction
The Supreme Court is the final arbiter in enforcing fundamental rights (Article 32 of the Constitution of India, 1950). The Supreme Court has the authority to strike down incompatible legislations. The Supreme Court is the only authority that can arbitrate disputes between a state and the union or disputes between different states (Article 131 of the Constitution of India, 1950). Various provisions of the Constitution and statutes enable the Supreme Court to transfer cases [Article 139A(1) and 139A(2) of the Constitution of India, 1950; Section 25 of the Code of Civil Procedure, 1908; Section 406 of the Code of Criminal Procedure, 1973]. The Constitution of India provides that all disputes relating to the election of a president or vice president of the country are required to be inquired into and decided by the Supreme Court (Article 71 of the Constitution of India, 1950). Advisory jurisdiction
The president of India may refer any subject of law or subject of public importance to the Supreme Court for
Court Systems: India
its opinion (Article 143 of the Constitution of India, 1950). Other powers
The Supreme Court is a court of record and has the power to punish for contempt (Article 129 of the Constitution of India, 1950). The Supreme Court’s pronouncements are binding on all other courts in the country, and are the law of the land. The Supreme Court has the power to reassess its own pronouncements if it is convinced that it has erred or jeopardized the public interest. The Supreme Court can also transfer to itself any case from any of the High Courts (Article 139 of the Constitution of India, 1950). In cases where the executive has failed in suitably discharging its duties the Supreme Court steps in response to the public interest litigations brought before the Supreme Court. The High Court
A state’s judicial hierarchy is steered by the High Court (Part VI, Chapter V of the Constitution of India). The High Court is authorized to pass any sentence approved by law, issue directions, orders, or writs including those for enforcement of fundamental rights and for any other purpose to any person within its jurisdiction, and monitor all courts within its jurisdiction. Court of Session
The state government forms a Court of Session for every session’s division as per Section 9 of the Code of Criminal Procedure of 1973 (CrPC). The judge of a Court of Session is appointed by the governor of the state in consultation with the High Court. The governor of the state in consultation with the High Court also appoints Additional Sessions Judges and Assistant Sessions Judges to the Court of Session. A Sessions Judge or Additional Sessions Judge is authorized to pronounce any sentence approved by law; but any such sentence of death shall be subject to affirmation by the High Court. An Assistant Sessions Judge may pronounce any sentence approved by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding 10 years. Courts of Judicial Magistrates
As per Section 11 of the Code of Criminal Procedure (CrPC), the state government, in consultation with the High Court, establishes Courts of Judicial Magistrates, of the first class and of the second class, in every district (other than a metropolitan area). A judicial magistrate of the first class is appointed as the Chief Judicial Magistrate of the district by the High Court. Similarly, any judicial magistrate of the first class may be appointed as an Additional Chief Judicial Magistrate. The Chief
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Judicial Magistrate, who guides, supervises, and controls other judicial magistrates, remains subordinate to the Sessions Judge. The Court of a Chief Judicial Magistrate may pass any sentence authorized by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding 7 years. The court of a magistrate of the first class may pass a sentence of imprisonment for a term not exceeding 3 years, or a fine not exceeding 10 000 rupees, or both. The court of a magistrate of the second class may pass a sentence of imprisonment for a term not exceeding 1 year, or a fine not exceeding 5000 rupees, or of both.
Courts of Metropolitan Magistrates
In every metropolitan area, the state government, after consultation with the High Court, may establish Courts of Metropolitan Magistrates. In every metropolitan area, the High Court will appoint a Metropolitan Magistrate as the Chief Metropolitan Magistrate. It may also appoint Additional Chief Metropolitan Magistrates, and such magistrates will have all the powers of the Chief Metropolitan Magistrate. The Metropolitan Magistrates shall be subordinate to the Sessions Judge. The court of a Chief Metropolitan Magistrate will have the powers of the court of a Chief Judicial Magistrate, and the court of a Metropolitan Magistrate will have the powers of the magistrate of the first class (Chandrachud et al., 2007).
Executive Magistrates
The state government may appoint Executive Magistrates in every district; these are entrusted with specific powers under both the Code of Criminal Procedure of 1973 (CrPC) and the Indian Penal Code of 1860 (IPC). The number of persons appointed as Executive Magistrates depends on the workload in that district. One of them is appointed the District Magistrate (DM), one as Additional District Magistrate (ADM), and one as SubDivisional Magistrate (SDM). The state government may appoint ‘Special Executive Magistrates’ to handle urgent law and order problems in particular areas. The state government normally confers these responsibilities on officers of the Revenue Department, for example, Collector (District Magistrate for an entire district), Joint Collector (ADM for an entire district), District Revenue Officer (ADM for an entire district), Revenue Divisional Officer (SDM for an entire revenue area), and Tahsildar (Mandal Executive Magistrate for an entire mandal). All the Executive Magistrates, other than the ADMs, are subsidiary to the District Magistrate. The state government may confer all or any of the powers of an Executive Magistrate on a Commissioner of Police regarding a metropolitan area.
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Court Systems: India
The Executive Magistrates cannot adjudicate on any issue. Any individual detained on court orders in an area outside the judicial limits should be presented before an Executive Magistrate of that area in which he or she was taken into custody. In these instances the Executive Magistrate can also set the surety or bail amount for avoiding police custody. The Executive Magistrate can also restrict individuals from indulging in a particular act or prevent them from entering a particular area. The Executive Magistrates alone are sanctioned to use force against people.
Civil Courts The Code of Civil Procedure, 1908, regulates the procedure for administering civil law disputes in India (Lal, 2011). Apart from this, various states have adopted their own separate Civil Courts Acts for this purpose (Bengal, Agra and Assam Civil Courts Act, 1887; Karnataka Civil Courts Act, 1964; Orissa Civil Courts Act, 1984). Civil justice is curative and is concerned with the implementation of rights. These civil courts are designated for a particular region in a district of the state and will have monetary limits on what these courts may entertain. Broadly, civil courts are categorized into the following divisions: 1. The court of the District Judge, which includes the court of the Additional District Judge; 2. The court of the Civil Judge (Senior Division), which includes the court of the Additional Civil Judge (Senior Division); 3. The court of the Civil Judge (Junior Division), which includes the court of the Additional Civil Judge (Junior Division); 4. Small Cause courts (concerned with adjudication of matters like guardianship and custody matters). The court of the District Judge will be the principal court in the district, which in turn is subordinate to the High Courts.
Special Courts and Tribunals In addition to the subordinate judiciary as constituted by the various provisions of the Constitution of India (Article 136, Article 323A, and 323B), there are specialized courts and tribunals at the district and state levels, which are quasi-judicial bodies to hear and settle on matters relating to industrial tribunals (Industrial Disputes Act, 1947), railway rates tribunals (Indian Railways Act, 1890), the Income Tax Appellate Tribunal (Income-Tax Act, 1961), the Court of Survey (Merchant Shipping Act, 1958), the Telecom Dispute Settlement Appellate Tribunal, Customs, Excise, and Gold (Control) Appellate Tribunal, VAT Tribunal,
Revenue Tribunal, labor disputes, family disputes, motor accident claims, consumer complaints, etc. Administrative Tribunals have been established by the enactment of Parliament 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 the Government of India (Sharma, 2007; Singh, 2008). Special courts are established in cases pertaining to large-scale financial scams and diversion of public funds by those in public offices or corporate management. Crimes having interstate criminal communal overtones endangering the security of society or terrorist crimes are also tried by special courts set up on an ad hoc basis by the Government. The cases involving the 26/11 Mumbai attack and Tamil Nadu Chief Minister, J. Jayalalithaa’s disproportionate assets case are a couple of recent high profile cases handled by special courts. The High Court of a particular state in which these special courts and tribunals are located has supervisory control over them.
See also: Court Systems: England and Wales − Law and Courts. Court Systems: Japanese Law and Courts. Court Systems: Sharii'ah Law and Courts. Court Systems: United States of America − Law and Courts. Courts and Tribunal Report Writing in England and Wales. War Crimes: International Criminal Court
References Bar Council of India, 2015. Brief history of law in India. Available at: http://www. barcouncilofindia.org/about/about-the-legal-profession/legal-education-in-theunited-kingdom/ (accessed 20.01.15). Bengal, Agra and Assam Civil Courts Act, 1887. Bose, B.B., 2010. Supreme Court of India Practice and Procedure: A Handbook of Information, third ed. New Delhi: Supreme Court of India. Committee on Reforms of Criminal Justice System, 2003. Available at: http://www. mha.nic.in/hindi/sites/upload_files/mhahindi/files/pdf/criminal_justice_system.pdf (accessed 20.01.15). Chandrachud, Y.V., Manohar, V.R., Singh, A., 2007. Ratanlal and Dhirajlal’s The Code of Criminal Procedure, seventeenth ed. Nagpur: Wadwa and Company. Galanter, M., Hayden, R.M., 1988. Judicial and legal systems of India. In: Embree, A.T. (Ed.), Encyclopedia of Asian History, vol. 2. New York: Charles Scribner’s Sons, pp. 411–414. Gupta, S., 2006. History of Legal Education. New Delhi: Deep & Deep Publications Pvt. Ltd. Karnataka Civil Courts Act, 1964. Lal, J., 2011. The Code of Civil Procedure, 1908. Delhi: Universal Law Publishing Pvt. Co. Ltd. Mate, M., 2015. The rise of judicial governance in the Supreme Court of India. Boston University International Law Journal 33, 102–156. Orissa Civil Courts Act, 1984. Sharma, B.K., 2007. Introduction to the Constitution of India, fourth ed. New Delhi: Prentice-Hall of India. Singh, M.P., 2008. V. N. Shukla‘s Constitution of India, eleventh ed. Lucknow: Eastern Book Company. Srivastava, R.K., 2008. A guide to India’s legal research and legal system. Available at: http://www.nyulawglobal.org/globalex/India_Legal_Research.htm (accessed 20.01.15).
Court Systems: India
Supreme Court of India, 2008. Annual Report 2007−2008. New Delhi: Supreme Court of India.
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Criticism. Houten, Netherlands: Springer, pp. 587–614. Available at: http://www. springer.com/gp/book/9781402057441 (accessed 20.01.15).
Further Reading
Relevant Websites
Berti, D., 2011. Courts of law and legal practice. In: Clark-Deces, I. (Ed.), A Companion to the Anthropology of India. Oxford: Blackwell Publishing, pp. 355–370. Available at: http://eu.wiley.com/WileyCDA/WileyTitle/productCd1444390589.html (accessed 20.01.15). Davis, D.R., 2007. Maxims and precedent in classical Hindu law. Indologica Taurinensia 33, 33–55. Available at: http://papers.ssrn.com/sol3/papers.cfm? abstract_id=1128208 (accessed 20.01.15). Giri, A.K., 2007. The rule of law and Indian society: From colonialism to postcolonialism. In: Costa, P., Zolo, D. (Eds.), The Rule of Law History Theory and
http://www.barcouncilofindia.org/ Bar Council of India. http://cbseacademic.in/web_material/doc/Legal_Studies/XI_U3_Legal_Studies.pdf Historical Evolution of the Indian Legal System. http://shodhganga.inflibnet.ac.in:8080/jspui/bitstream/10603/16633/9/09_chapter% 204.pdf Judicial System in Mughal India.
Abstract India is described as the world’s largest functioning democracy, with its enormous population and cultural diversity. The Indian legal system is an integration of many legal traditions which have been part of different civilizations and cultures that have ruled India over the centuries. An independent judiciary at the heart of the structure of constitutional control guarantees a trustworthy system of checks and balances in governance. The judiciary also acts as an instrument of social change and development. In recent years, the Supreme Court of India has played an ‘activist’ role in influencing Indian society.
Historical Background of the Indian Legal System The Indian legal system refers to the system of law prevalent in India (Bose, 2010; Gupta, 2006). India’s legal system is one of the oldest in the world. Its law and jurisprudence evolved over many centuries and assimilated the traditions and lives of its diverse people. India has been the home of four major legal traditions: Hindu (Dharmashastras), Muslim (Sharia), British (Privy Council), and that of modern, sovereign India. Even though each of the last three legal systems was established in India as the result of dramatic political upheaval, none has ever totally superseded its predecessors, retaining important elements of the earlier traditions (Galanter and Hayden, 1988). In the Hindu tradition, law is dharma, which involves righteous or appropriate conduct, synonymous with the English concepts of law, morality, duty, and obligation (Galanter and Hayden, 1988). Muslim rulers brought in a new system – the Islamic law (Sharia) – which had royal courts in cities and administrative centers that exercised their influence over a wide variety of issues such as civil, criminal, commercial, and family matters. With the entry of the East India Company, a third legal tradition was introduced in the seventeenth century. The East India Company’s charter gave it the power to discipline its own servants, and an accord with the Mughal rulers accepted this power in the form of company courts, which were later converted into royal courts deriving their authority directly from the sovereign and not from the company, with appeal to the Privy Council in London. Since an appeal to the Privy Council was very costly, contrary to the self-respect of the Indian ethos, and beyond the means of ordinary persons, there was a mounting demand for establishment of a supreme court in India. This resulted in the introduction of the Federal Court of India, involving allocation of powers between the center and the
Encyclopedia of Forensic and Legal Medicine, Volume 1
constituent units under the Government of India Act of 1935. The jurisdiction of the Federal Court was very limited and appeals from the Federal Court would go to the Privy Council. After India’s independence in 1947, the legal system again changed dramatically. There was a demand from the Indian political leaders to enlarge the jurisdiction of the Federal Court and grant more powers to it and to achieve freedom in a real sense, which led to the abolition of any role of the Privy Council in the functioning of the Federal Court after 10 October 1949. The Constitution of India, which came into effect on 26 January 1950, created an integrated, hierarchical judiciary, headed by a Supreme Court. All executive, legislative, and judicial matters in the country became to be governed and guided by the Constitution of India. The Constitution resolutely changed the direction of a system originally designed for the preservation of colonial welfare in India into one with social welfare as its core. Indian law began to be fine-tuned for Indian aspirations in the course of judicial pronouncements and legislative action (Galanter and Hayden, 1988; Bar Council of India, 2015).
The Constitution of India and the Indian Legal System Part V, Chapter IV (Articles 124 to 147) of the Constitution of India describes the essentials of the ‘Union Judiciary,’ i.e., the Supreme Court (Bose, 2010; Sharma, 2007; Srivastava, 2008; Supreme Court of India, 2008). The Supreme Court of India consists of a Chief Justice of India and 30 other judges. The president appoints every judge of the Supreme Court after consultation with judges of the Supreme Court and the High Courts. The Supreme Court verdicts are delivered by benches comprising of two or three judges, except in matters pertaining to constitutional importance where five or more judges constitute
doi:10.1016/B978-0-12-800034-2.00395-5
641
642
Court Systems: India
the bench. A Supreme Court judge holds office until he reaches the age of 65 years. The Supreme Court will function in Delhi or in such other location as the Chief Justice of India may, with the endorsement of the president, periodically decides. Chapter V (Articles 214 to 231) of the Constitution of India describes the essentials of ‘The High Courts in India.’ Each state will be served by a High Court. There are 24 High Courts across India, three of which have jurisdiction over more than one state. A common High Court for two or more states may be established by an enactment of the Parliament. The Chief Justice of the High Court is the presiding officer of a High Court. The president appoints other judges of the High Court in consultation with the Chief Justice of India, the governor of the state concerned, and the Chief Justice of the High Court concerned. A High Court judge holds office until he reaches the age of 62 years. Chapter VI (Articles 233 to 237) of the Constitution of India describes the essentials of ‘The Subordinate/Subsidiary Courts,’ i.e., the different layers of courts at the district level. The appointment of district judges will be made by the governor of the state in consultation with the presiding officer of the High Court.
Hierarchy of Courts in India and Their Powers India has an integrated judicial system. The Supreme Court of India is at the apex of the legal structure, which exercises jurisdiction in diverse forms, namely appellate, original, advisory, and those powers conferred under several statutes of the Constitution of India (Bose, 2010; Chandrachud et al., 2007; Committee on Reforms of Criminal Justice System, 2003; Supreme Court of India, 2008). The High Courts in the various states are at the next level, second only to the Supreme Court. The High Courts also exercise appellate, original, and advisory jurisdiction, and those powers conferred under several statutes of the Constitution of India as well as the power of supervision over all the courts in their individual states. The third level is that of the subordinate/subsidiary judiciary at the district level, which in turn consists of various levels of judges (on both the civil and criminal sides) whose jurisdiction is based on regional and pecuniary limits. In addition to the aforementioned courts there are a number of other courts and tribunals established to govern specific areas of the law of the land. The Supreme Court
Decisions by the Supreme Court are binding on all courts within the territory of India (Bose, 2010; Mate, 2015). The jurisdiction of the Supreme Court can broadly be categorized as: 1. Appellate jurisdiction 2. Original jurisdiction
3. Advisory jurisdiction 4. Other powers. Appellate jurisdiction
Appeals are permitted by the Supreme Court of India against the pronouncement of a High Court under the following circumstances: i. if a High Court approves that the matter in question deals with the interpretation of the Constitution (Article 132 of the Constitution of India, 1950); ii. if a High Court approves that the case involves a considerable question of law and it needs to be adjudicated by the Supreme Court (Article 133 of the Constitution of India, 1950); iii. in a criminal proceeding of a High Court if it (1) has adjudicated an appeal regarding acquittal of an accused person and reversed it to death sentence or imprisonment for more than 10 years, or (2) has withdrawn for trial before itself any proceeding from any court subordinate to it and has in that trial found the accused guilty and sentenced him to death or imprisonment for more than 10 years, or (3) approves that the case is an appropriate one to be adjudicated by the Supreme Court (Article 134 of the Constitution of India, 1950). The Constitution of India allows the Supreme Court to, at its discretion, grant special leave to appeal from any pronouncement in any issue adjudicated by any court or tribunal in the territory of India except a court or tribunal constituted by or under any law relating to the armed forces (Article 136 of the Constitution of India, 1950). Original jurisdiction
The Supreme Court is the final arbiter in enforcing fundamental rights (Article 32 of the Constitution of India, 1950). The Supreme Court has the authority to strike down incompatible legislations. The Supreme Court is the only authority that can arbitrate disputes between a state and the union or disputes between different states (Article 131 of the Constitution of India, 1950). Various provisions of the Constitution and statutes enable the Supreme Court to transfer cases [Article 139A(1) and 139A(2) of the Constitution of India, 1950; Section 25 of the Code of Civil Procedure, 1908; Section 406 of the Code of Criminal Procedure, 1973]. The Constitution of India provides that all disputes relating to the election of a president or vice president of the country are required to be inquired into and decided by the Supreme Court (Article 71 of the Constitution of India, 1950). Advisory jurisdiction
The president of India may refer any subject of law or subject of public importance to the Supreme Court for
Court Systems: India
its opinion (Article 143 of the Constitution of India, 1950). Other powers
The Supreme Court is a court of record and has the power to punish for contempt (Article 129 of the Constitution of India, 1950). The Supreme Court’s pronouncements are binding on all other courts in the country, and are the law of the land. The Supreme Court has the power to reassess its own pronouncements if it is convinced that it has erred or jeopardized the public interest. The Supreme Court can also transfer to itself any case from any of the High Courts (Article 139 of the Constitution of India, 1950). In cases where the executive has failed in suitably discharging its duties the Supreme Court steps in response to the public interest litigations brought before the Supreme Court. The High Court
A state’s judicial hierarchy is steered by the High Court (Part VI, Chapter V of the Constitution of India). The High Court is authorized to pass any sentence approved by law, issue directions, orders, or writs including those for enforcement of fundamental rights and for any other purpose to any person within its jurisdiction, and monitor all courts within its jurisdiction. Court of Session
The state government forms a Court of Session for every session’s division as per Section 9 of the Code of Criminal Procedure of 1973 (CrPC). The judge of a Court of Session is appointed by the governor of the state in consultation with the High Court. The governor of the state in consultation with the High Court also appoints Additional Sessions Judges and Assistant Sessions Judges to the Court of Session. A Sessions Judge or Additional Sessions Judge is authorized to pronounce any sentence approved by law; but any such sentence of death shall be subject to affirmation by the High Court. An Assistant Sessions Judge may pronounce any sentence approved by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding 10 years. Courts of Judicial Magistrates
As per Section 11 of the Code of Criminal Procedure (CrPC), the state government, in consultation with the High Court, establishes Courts of Judicial Magistrates, of the first class and of the second class, in every district (other than a metropolitan area). A judicial magistrate of the first class is appointed as the Chief Judicial Magistrate of the district by the High Court. Similarly, any judicial magistrate of the first class may be appointed as an Additional Chief Judicial Magistrate. The Chief
643
Judicial Magistrate, who guides, supervises, and controls other judicial magistrates, remains subordinate to the Sessions Judge. The Court of a Chief Judicial Magistrate may pass any sentence authorized by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding 7 years. The court of a magistrate of the first class may pass a sentence of imprisonment for a term not exceeding 3 years, or a fine not exceeding 10 000 rupees, or both. The court of a magistrate of the second class may pass a sentence of imprisonment for a term not exceeding 1 year, or a fine not exceeding 5000 rupees, or of both.
Courts of Metropolitan Magistrates
In every metropolitan area, the state government, after consultation with the High Court, may establish Courts of Metropolitan Magistrates. In every metropolitan area, the High Court will appoint a Metropolitan Magistrate as the Chief Metropolitan Magistrate. It may also appoint Additional Chief Metropolitan Magistrates, and such magistrates will have all the powers of the Chief Metropolitan Magistrate. The Metropolitan Magistrates shall be subordinate to the Sessions Judge. The court of a Chief Metropolitan Magistrate will have the powers of the court of a Chief Judicial Magistrate, and the court of a Metropolitan Magistrate will have the powers of the magistrate of the first class (Chandrachud et al., 2007).
Executive Magistrates
The state government may appoint Executive Magistrates in every district; these are entrusted with specific powers under both the Code of Criminal Procedure of 1973 (CrPC) and the Indian Penal Code of 1860 (IPC). The number of persons appointed as Executive Magistrates depends on the workload in that district. One of them is appointed the District Magistrate (DM), one as Additional District Magistrate (ADM), and one as SubDivisional Magistrate (SDM). The state government may appoint ‘Special Executive Magistrates’ to handle urgent law and order problems in particular areas. The state government normally confers these responsibilities on officers of the Revenue Department, for example, Collector (District Magistrate for an entire district), Joint Collector (ADM for an entire district), District Revenue Officer (ADM for an entire district), Revenue Divisional Officer (SDM for an entire revenue area), and Tahsildar (Mandal Executive Magistrate for an entire mandal). All the Executive Magistrates, other than the ADMs, are subsidiary to the District Magistrate. The state government may confer all or any of the powers of an Executive Magistrate on a Commissioner of Police regarding a metropolitan area.
644
Court Systems: India
The Executive Magistrates cannot adjudicate on any issue. Any individual detained on court orders in an area outside the judicial limits should be presented before an Executive Magistrate of that area in which he or she was taken into custody. In these instances the Executive Magistrate can also set the surety or bail amount for avoiding police custody. The Executive Magistrate can also restrict individuals from indulging in a particular act or prevent them from entering a particular area. The Executive Magistrates alone are sanctioned to use force against people.
Civil Courts The Code of Civil Procedure, 1908, regulates the procedure for administering civil law disputes in India (Lal, 2011). Apart from this, various states have adopted their own separate Civil Courts Acts for this purpose (Bengal, Agra and Assam Civil Courts Act, 1887; Karnataka Civil Courts Act, 1964; Orissa Civil Courts Act, 1984). Civil justice is curative and is concerned with the implementation of rights. These civil courts are designated for a particular region in a district of the state and will have monetary limits on what these courts may entertain. Broadly, civil courts are categorized into the following divisions: 1. The court of the District Judge, which includes the court of the Additional District Judge; 2. The court of the Civil Judge (Senior Division), which includes the court of the Additional Civil Judge (Senior Division); 3. The court of the Civil Judge (Junior Division), which includes the court of the Additional Civil Judge (Junior Division); 4. Small Cause courts (concerned with adjudication of matters like guardianship and custody matters). The court of the District Judge will be the principal court in the district, which in turn is subordinate to the High Courts.
Special Courts and Tribunals In addition to the subordinate judiciary as constituted by the various provisions of the Constitution of India (Article 136, Article 323A, and 323B), there are specialized courts and tribunals at the district and state levels, which are quasi-judicial bodies to hear and settle on matters relating to industrial tribunals (Industrial Disputes Act, 1947), railway rates tribunals (Indian Railways Act, 1890), the Income Tax Appellate Tribunal (Income-Tax Act, 1961), the Court of Survey (Merchant Shipping Act, 1958), the Telecom Dispute Settlement Appellate Tribunal, Customs, Excise, and Gold (Control) Appellate Tribunal, VAT Tribunal,
Revenue Tribunal, labor disputes, family disputes, motor accident claims, consumer complaints, etc. Administrative Tribunals have been established by the enactment of Parliament 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 the Government of India (Sharma, 2007; Singh, 2008). Special courts are established in cases pertaining to large-scale financial scams and diversion of public funds by those in public offices or corporate management. Crimes having interstate criminal communal overtones endangering the security of society or terrorist crimes are also tried by special courts set up on an ad hoc basis by the Government. The cases involving the 26/11 Mumbai attack and Tamil Nadu Chief Minister, J. Jayalalithaa’s disproportionate assets case are a couple of recent high profile cases handled by special courts. The High Court of a particular state in which these special courts and tribunals are located has supervisory control over them.
See also: Court Systems: England and Wales − Law and Courts. Court Systems: Japanese Law and Courts. Court Systems: Sharii'ah Law and Courts. Court Systems: United States of America − Law and Courts. Courts and Tribunal Report Writing in England and Wales. War Crimes: International Criminal Court
References Bar Council of India, 2015. Brief history of law in India. Available at: http://www. barcouncilofindia.org/about/about-the-legal-profession/legal-education-in-theunited-kingdom/ (accessed 20.01.15). Bengal, Agra and Assam Civil Courts Act, 1887. Bose, B.B., 2010. Supreme Court of India Practice and Procedure: A Handbook of Information, third ed. New Delhi: Supreme Court of India. Committee on Reforms of Criminal Justice System, 2003. Available at: http://www. mha.nic.in/hindi/sites/upload_files/mhahindi/files/pdf/criminal_justice_system.pdf (accessed 20.01.15). Chandrachud, Y.V., Manohar, V.R., Singh, A., 2007. Ratanlal and Dhirajlal’s The Code of Criminal Procedure, seventeenth ed. Nagpur: Wadwa and Company. Galanter, M., Hayden, R.M., 1988. Judicial and legal systems of India. In: Embree, A.T. (Ed.), Encyclopedia of Asian History, vol. 2. New York: Charles Scribner’s Sons, pp. 411–414. Gupta, S., 2006. History of Legal Education. New Delhi: Deep & Deep Publications Pvt. Ltd. Karnataka Civil Courts Act, 1964. Lal, J., 2011. The Code of Civil Procedure, 1908. Delhi: Universal Law Publishing Pvt. Co. Ltd. Mate, M., 2015. The rise of judicial governance in the Supreme Court of India. Boston University International Law Journal 33, 102–156. Orissa Civil Courts Act, 1984. Sharma, B.K., 2007. Introduction to the Constitution of India, fourth ed. New Delhi: Prentice-Hall of India. Singh, M.P., 2008. V. N. Shukla‘s Constitution of India, eleventh ed. Lucknow: Eastern Book Company. Srivastava, R.K., 2008. A guide to India’s legal research and legal system. Available at: http://www.nyulawglobal.org/globalex/India_Legal_Research.htm (accessed 20.01.15).
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Supreme Court of India, 2008. Annual Report 2007−2008. New Delhi: Supreme Court of India.
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Criticism. Houten, Netherlands: Springer, pp. 587–614. Available at: http://www. springer.com/gp/book/9781402057441 (accessed 20.01.15).
Further Reading
Relevant Websites
Berti, D., 2011. Courts of law and legal practice. In: Clark-Deces, I. (Ed.), A Companion to the Anthropology of India. Oxford: Blackwell Publishing, pp. 355–370. Available at: http://eu.wiley.com/WileyCDA/WileyTitle/productCd1444390589.html (accessed 20.01.15). Davis, D.R., 2007. Maxims and precedent in classical Hindu law. Indologica Taurinensia 33, 33–55. Available at: http://papers.ssrn.com/sol3/papers.cfm? abstract_id=1128208 (accessed 20.01.15). Giri, A.K., 2007. The rule of law and Indian society: From colonialism to postcolonialism. In: Costa, P., Zolo, D. (Eds.), The Rule of Law History Theory and
http://www.barcouncilofindia.org/ Bar Council of India. http://cbseacademic.in/web_material/doc/Legal_Studies/XI_U3_Legal_Studies.pdf Historical Evolution of the Indian Legal System. http://shodhganga.inflibnet.ac.in:8080/jspui/bitstream/10603/16633/9/09_chapter% 204.pdf Judicial System in Mughal India.