Indian Judiciary System Essay

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In a political system based on constitutional Government , the functions of rule making, rule enforcement and rule interpretation are separated into the three institutions of the legislature, the executive and the judiciary. A judiciary that is independent of and acting as a check on arbitrary exercise of legislative and executive power is an essential feature of a constitutional itself means.

In a federal system, the judiciary also serves as a tribunal for the final determination of disputes between the union and its constituent units. Given the tremendous importance of the role and functions of the Supreme Court & High Courts, various measures have been adopted to ensure the independence of the judiciary. The judiciary in India is paradoxical institution. On the one hand courts are extraordinarily powerful on the other, its working seems manipulated by the executive. Through a creative interpretation of the constitution, courts have not only exercised their power of judicial review but also have to managed to place the limits on the power of parliament to amend the constitution.

There are 20 million case pending in Indian courts, of which 3.2 million are in the High Courts. The entire judicature has been divided into three tiers. At the top there is a Supreme court (apex), below it is the High Court and the lowest rank is occupied by session’s court. The supreme Court is the highest court of law.

The constitution says that the law declared by the supreme court shall be binding on all small courts within the territory of India(Art. 141). Below the Supreme Court, are the High Courts located in the states. Under each High Court there are District Sessions Courts. Subordinate Courts and Courts of Minor Jurisdiction called Small cause courts.

Given the importance of the judiciary in a federal system resting on limited government , The Supreme Court was designed to make it the final authority in the interpretation of the constitution . While framing the judicial provisions, the constituent assembly gave a great deal of attention of the courts, the power of the supreme court and the issue of judicial review. The Constitution makes sure that the Supreme Court is independent as much as possible.

Eligibility -The person must be a citizen of India -Judge of a High Court or of two or more such Courts in succession for at least five years, or -An Advocate of a High Court or of two or more such Courts in succession for at least ten years, or -The person must be, in the opinion of the President, a distinguished jurist. -A Judge of a High Court or retired Judge of the Supreme Court or High Courts may be appointed as an ad-hoc Judge of the Supreme Court. Appointment: Though the President has the appointing authority with the advice of his Council of ministers the appointment of the Supreme Court Judge has been lifted from the realm of pure politics by requiring the President to consult the Chief Justice of India in the matter.

Salary: The salary and allowances of a judge cannot be reduced after appointment.the salaraies of the judges are fixed by the constitution and providing that though the allowances,leave and pension may be determined by law made by the Parliament,these shall not be varied to the disadvantage of a judge during his term of office except may be during a financial emergency’.the adminstrative expenses of the Supreme Court,the salaries and allowances of the Judges and staff of the Supreme Court shall not be subjected to vote in Parliament and would be charged on the Consolidated Fund of India’. Contempt of court: The Constituion allows the Supreme Court to punish anyone for contempt of any law court in India,under Articles 129 and 142.

The Supreme Court perforemed an unprecedneted action when it directed a sitting minister of the state of Maharashtra,Swaroop singh Naik,to be jailed for one month incharge of contempt of court on 12 May 2006.This was the first time a serving minister was ever jailed.He was sentenced for allowing an illegal saw mill to run in a forest in Vidarbha near Tadoba santuary when he wa the Maharashtra forest minister.The court had directed in 1997 to the state ministers to not renew the licenses of sawmills in the forest areas. Violation of Laws: The Supeme Court has the right to invalidate any law made by the Parliament if it violates the Basic Stucture of the constituion or if it violates any of the fundamental rights of the citizens.

On 24th April,1973 the Supreme Court in the Kesavananda Bharti v/s The state of Kerela’ case responded to the Parliament that although the amendments made were constituional the court still reserved for itself the discretion to reject any constituional amendments passed by Parliament declaring that the amendments cannot change the Basic Structure. Removal: The judge cannot be removed from office before time except by an order of the president passed in the Lok Sabha and Rajya Sabha supported by a majority of the total membership of that house and by a majority of not less than two thirds oh the members present and voting,and presented to the president in the same session for such removal on the ground of proved misbehaviour or incapacity.

There were two judges who were removed by this process the first was Justice V.Ramaswami:He was the Punjab and Haryana High Court chief justice of the year 1993 when he was impeached by the Lok Sabha by 196 votes because of his incapacity to do work. The Supreme Court charged him for his failure to do complete justice. The second was that of Justcice Soumitra Sen.He was the Calcutta High Court chief justice,the justice of India K.G Balakrishnanhad recommended him for impeachement to the Parliament because he had misappropriating rs.22.83 lakh than on than on 2009 a three member committee was set up and investigation was staretd and he was found guilty and finally on 17th August 2011 he was impeached by Rajya Sabha. The Supreme Court has original, appellate and advisory jurisdiction.

Its exclusive original jurisdiction extends to any dispute between the Government of India and one or more States or between the Government of India and any State or States on one side and one or more States on the other or between two or more States, if and insofar as the dispute involves any question (whether of law or of fact) on which the existence or extent of a legal right depends. In addition, Article 32 of the Constitution gives an extensive original jurisdiction to the Supreme Court in regard to enforcement of Fundamental Rights. It is empowered to issue directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari to enforce them.

The Supreme Court has been conferred with power to direct transfer of any civil or criminal case from one State High Court to another State High Court or from a Court subordinate to another State High Court. The Supreme Court, if satisfied that cases involving the same or substantially the same questions of law are pending before it and one or more High Courts or before two or more High Courts and that such questions are substantial questions of general importance, may withdraw a case or cases pending before the High Court or High Courts and dispose of all such cases itself. Under the Arbitration and Conciliation Act, 1996, International Commercial Arbitration can also be initiated in the Supreme Court.

The appellate jurisdiction of the Supreme Court can be invoked by a certificate granted by the High Court concerned under Article 132(1), 133(1) or 134 of the Constitution in respect of any judgement, decree or final order of a High Court in both civil and criminal cases, involving substantial questions of law as to the interpretation of the Constitution. Appeals also lie to the Supreme Court in civil matters if the High Court concerned certifies : (a) that the case involves a substantial question of law of general importance, and (b) that, in the opinion of the High Court, the said question needs to be decided by the Supreme Court.

In criminal cases, an appeal lies to the Supreme Court if the High Court (a) has on appeal reversed an order of acquittal of an accused person and sentenced him to death or to imprisonment for life or for a period of not less than 10 years, or (b) has withdrawn for trial before itself any case from any Court subordinate to its authority and has in such trial convicted the accused and sentenced him to death or to imprisonment for life or for a period of not less than 10 years, or (c) certified that the case is a fit one for appeal to the Supreme Court. Parliament is authorised to confer on the Supreme Court any further powers to entertain and hear appeals from any judgement, final order or sentence in a criminal proceeding of a High Court.

The Supreme Court has also a very wide appellate jurisdiction over all Courts and Tribunals in India in as much as it may, in its discretion, grant special leave to appeal under Article 136 of the Constitution from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any Court or Tribunal in the territory of India. The Supreme Court has special advisory jurisdiction in matters which may specifically be referred to it by the President of India under Article 143 of the Constitution. The supreme court is vested with the power to render advisory opinions on any question of fact or law that may be referred to it by the president. The advisory role of the supreme court is different from orinary jurisdiction in three senses.

There is no litigation between two parties The advisory opinion of the court is not binding on the govt. It is not executable as a judgement of the court. The practice of seeking advisory opinion of the supreme court helps the executive as a judgement of the court.

It gives a soft opinion to the indian govt. on some politically difficult issues. As in case of Babri Masjid complex and Ayodhya. The govt. decided to refer aspects of the dispute to the supreme court for an opinion. Since there was no legal point at issue, the referral to the supreme court had the potential for politicizing the judiciary instead resolving.

Although the proceedings in the Supreme Court arise out of the judgments or orders made by the Subordinate Courts including the High Courts, but of late the Supreme Court has started entertaining matters in which interest of the public at large is involved and the Court can be moved by any individual or group of persons either by filing a Writ Petition at the Filing Counter of the Court or by addressing a letter to Hon’ble the Chief Justice of India highlighting the question of public importance for invoking this jurisdiction. Such concept is popularly known as Public Interest Litigation’ and several matters of public importance have become landmark cases.

This concept is unique to the Supreme Court of India only and perhaps no other Court in the world has been exercising this extraordinary jurisdiction. A Writ Petition filed at the Filing Counter is dealt with like any other Writ Petition and processed as such. In case of a letter addressed to Hon’ble the Chief Justice of India the same is dealt with in accordance with the guidelines framed for the purpose.

If a petition is received from the jail or in any other criminal matter if the accused is unrepresented then an Advocate is appointed as amicus curiae by the Court to defend and argue the case of the accused. In civil matters also the Court can appoint an Advocate as amicus curiae if it thinks it necessary in case of an unrepresented party; the Court can also appoint amicus curiae in any matter of general public importance or in which the interest of the public at large is involved. As in case of Kasab, A bench of justices Aftab Alam and C K Prasad dismissed 25-year-old Kasab’s plea against his conviction and death sentence confirmed by the Bombay high court, saying he was given free[->0]and fair trial in the case.

Kasab’s confessional statement was very much voluntary except a very small portion, the bench held.It also dismissed Kasab’s contention that the trial was not fair because the government did notprovide[->1] him advocate in the period when he was arrested and put on trial. The height court explained the trial court experienced made repeated attempts um provide Kasab with a lawyer but he previously spurned the offer initially and stated he would not want to simply accept Indian lawyers. The all judges said that in the totality of facts, evidences and conditions the court docket had zero option but for impose fatality sentence upon Kasab.

The bench likewise observed that going by the evidence, it was clear the fact that conspiracy and planning in the 26/11 assault was hatched in Pakistan. The High Court stands at the head of any State’s legislativo administration. You will discover 18 Large Courts near your vicinity, three having jurisdiction over more than one Express.

Among the Union Territories Delhi alone contains a High Courtroom of its. Other six Union Territories come beneath the jurisdiction of numerous State Large Courts. Each High The courtroom comprises of a Chief Proper rights and such various other Judges as the Chief executive may, occasionally, appoint.

The main Justice of any High Courtroom is appointed by the Director in consultation with the Chief Justice of India and the Governor with the State. The method for hiring Judges is definitely the same except that the Chief Proper rights of the High Court concerned is also conferred with. They keep office before the age of 62 years and are also removable very much the same as a Assess of the Supreme Court. To get eligible for appointment as a Judge one must be a citizen of India and still have held a judicial workplace in India for 10 years or need to have practised while an Adovcate of a Excessive Court or maybe more or more this kind of Courts in succession for the similar period.

Each High Court offers power to concern to any person within their jurisdiction directions, orders, or perhaps writs including writs that are in the mother nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for enforcement of Fundamental Legal rights and for some other purpose. This power might also be exercised by any Large Court exercising jurisdiction pertaining to territories within which the cause of action, wholly or in part, arises pertaining to exercise of such electricity, notwithstanding the fact that seat of such Federal government or expert or home of these kinds of person is definitely not inside those areas. Each Substantial Court has powers of superintendence over all Courts inside its legal system.

It can call for returns via such Legal courts, make and issue general rules and prescribe varieties to regulate their particular practice and proceedings and determine the way in which and contact form in which book entries and accounts will be kept.

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