Page 1131 - 1138

INTERNATIONAL JOURNAL OF LAW

MANAGEMENT & HUMANITIES
[ISSN 2581-5369]
Volume 3 | Issue 4
2020
© 2020 International Journal of Law Management & Humanities

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1131 International Journal of Law Management & Humanities [Vol. 3 Iss 4; 1131]

Judicial Systems: A Comparative Analysis of

India and U.S.A
ANANT FAUJDAR1

ABSTRACT
All thoughtful men agree that it would be impossible to govern any country wisely without
a good judiciary; and accordingly every enlightened nation has established courts,
conferring on them such powers and imposing on them such duties as seem best calculated
to promote the public welfare. Indeed, the importance of the judiciary is now so thoroughly
recognized that in every land where liberty is cherished and the law respected, the people
are engaged in a constant struggle to improve their system; and in that struggle the judges
have everywhere borne the most useful part. With that thought in my mind, the researcher
would now like to introduce the topic.

Given the complex nature of comparative study in the field of judicial systems, the
researcher has tried meticulously to analyse the topic based on five yardsticks, namely- the
constitution and composition of courts, principle of natural justice, concept of judicial
review and how it is enforced, separation of powers and finally the challenges that lay
ahead of both the judicial systems.

I. INTRODUCTION
“We are under a Constitution, but the Constitution is what the judges say it is, and the
judiciary is the safeguard of our property and our liberty and our property under the
Constitution.”

- Charles Evans Hughes

As we know that India and America boast of being the world’s biggest and oldest democracy
respectively in the world. It is indeed a privilege to know that both the democracies have not
only thrived over the time but have maintained the constitutional supremacy. One of the basic
features or as we say the touchstone of democracy is judiciary. The most important function of
judiciary is to interpret law. The Indian Constitution provides for Independence of judiciary
which is a basic feature of the constitution as reiterated by honourable Supreme Court of India.

In case of U.S.A, the power of judiciary has evolved over time, we shall see in the later chapters

1
Author is an Assistant Professor at School of Law, Lovely Professional University, Phagwara, Punjab, India.

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how the judiciary has declared almost every law passed by legislature which was in conflict
with the constitution or the court itself. The founding fathers of America were also concerned
about freedom of courts and that is very must prevalent in the debates of constitutional
convention. We will also see how two cases shaped the history of judicial review in United
States.

If there should be an occurrence of India the underlying long periods of the preeminent court
of India saw the selection of a methodology portrayed by alert and attentiveness. Being
saturated with the British convention of restricted legal survey, the court commonly received a
pre-governing body position. This is evident from the rulings such as A.K Gopalan. As Justice
Cardozo puts it, “A constitution states or ought to state not rules for the passing hour but
principles for an expanding future.”

It would therefore be interesting to compare these two vast systems of democracy and to trace
their historical backgrounds and their workings in light of the major challenges that stand
ahead. The researcher has also attempted to draw certain similarities where ever necessary
between the two systems since it is the belief of the researcher that despite having certain
differences in terms of composition and approach the basic spirit of both the systems is same
i.e. JUSTICE.

II. CONSTITUTION AND COMPOSITION OF COURTS

U.S.A

a) If the government court framework is seen as a pyramid, at the top is the Supreme Court
of the United States, the most elevated court.
b) On the following level are the 13 United States Courts of Appeals and the US Court of
Appeals for the Armed Forces.
c) On the accompanying level are the 94 US region courts and the particular courts, for
example, the Tax Court, the Court of Federal Claims, the Court of Veterans Appeals, and
the Court of International Trade. There are different highways a case may take to a
government court.

INDIA

a. Supreme Court: the Supreme Court of India is the apex judicial forum and final court
of appeal as established by Chapter IV of Part V of the Constitution of India. The Supreme
Court enjoys writ, appellate, original and advisory jurisdiction. In addition to this Supreme
Court and High Court also enjoy the power of judicial review. The Supreme Court of India

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consists of the Chief Justice of India and thirteen other Judges. The Judges are appointed by
the President of India on the ministerial advice after consultation with the Judges as prescribed
in the fundamental law of the land. They hold office until they attain the age of sixty-five years
and are irremovable except by what is known as the process of impeachment only on the ground
of proved misbehavior or incapacity. Chapter IV of Part V of the Constitution of India deals
with the Union Judiciary.
b. High Court: High Courts are the highest courts at district and union territory level.
These courts have jurisdiction over a state, a union territory or a group of states and union
territories. The High Courts in India enjoy writ, Revision and Appellate jurisdiction, whereas
High Courts at Mumbai, Kolkata, Delhi and Chennai also enjoy original jurisdiction. Just
below the Supreme Court there is a High Court for each State. But there is a common High
Court for the States of Assam and Nagaland. Each High Court consists of a Chief Justice and
such other Judges as the President may deem it necessary to appoint. Every Judge of a High
Court is appointed by the President on the Ministerial advice after consultation with the Chief
Justice of India, the Governor of the State concerned and in the case of appointment of a Judge
other than the Chief Justice, the Chief Justice of the High Court too. The retiring age of the
High Court Judges has recently been raised from sixty to sixty-two years.4 A High Court judge
may be removed from his office exactly in the same manner as in the case of removal of a
Supreme Court Judge. Chapter V of Part VI of the Constitution of India deals with the High
Courts in the states.
c. District and Sessions Court: Generally each state is divided into districts presided
over by a ‘District and Sessions Judge’. He is known as District judge when he presides over a
civil case and a Sessions judge when he presides over a criminal case. He is the highest judicial
authority at district level. Constitution of courts below this level varies from state to state.
Chapter VI Part VI of the Constitution of India deals with Subordinate Courts.
d. Various Tribunals and Appellate Boards: The Indian Judicial system also consist of
many Tribunals and Appellate Boards constituted for specific purposes. The power,
jurisdiction and procedure of these forums are generally governed by the statutes constituting
them. IPAB is one of the most prominent among these forums and it enjoys appellate as well
as original jurisdiction in IP matters.

NOTE: It is important to note that the Judges of the Supreme Court of India retire at the age
of 65. The Judges of the Supreme Court of America on the other hand are appointed for life
time but they can retire, if they so choose, at the age of 70. This enables their country to utilize
their experience which they have gathered at the expense of the nation. It is not unoften that

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Judges after their retirement in India are appointed as members of various tribunals and
commissions. Evidently all such judges as are offered various assignments after their retirement
are capable of serving the Courts also.

III. POWER OF JUDICIAL REVIEW

U.S.A

The basic hypothesis of American legal audit is condensed by sacred lawful researchers and
students of history as follows: the composed Constitution is crucial law. It can change just by
remarkable administrative procedure of national proposition, at that point state endorsement.
The forces of all offices are restricted to counted awards found in the Constitution. Courts are
normal:

a) To authorize arrangements of the Constitution as the preeminent rule that everyone

must follow, and
b) To decline to uphold anything in strife with it.
INDIA

The Apex Court of India holds the weapon of Judicial Review but in no way at par with the
Judicial Review of the Supreme Court of the United States.

The "due process " clause in the Constitution of America enables its Supreme Court to declare
such laws ultra vires as are not in consonance with their reason while in India the Judges of the
Supreme Court can declare only such laws and orders as ultra vires as are repugnant to the
Constitution The problem before our Supreme Court is not to examine the "due process' but
"the procedure established by law." The American Supreme Court has freely used the doctrine
of implied powers enabling thereby a rigid constitution to keep pace with times but no such
role has been assigned to the Supreme Court of India. Accordingly while the Supreme Court
of America has been described as the third chamber of its Legislature, more powerful than the
remaining two, no such role is expected to be played by the Supreme Court of India.

IV. SEPARATION OF POWERS

U.S.A

The Constitution of the U.S.A. accommodates more prominent detachment of forces because
of which the workplace of the President has gotten all the more impressive.

President Grover Cleveland- He additionally started to suspend civil servants who were
named because of the support framework, supplanting them with progressively "meriting"
people. The Senate, in any case, would not affirm numerous new designations, rather
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requesting that Cleveland turn over the classified records identifying with the suspensions.
Cleveland unfalteringly won't, affirming, "These suspensions are my official demonstrations
... I am not mindful to the Senate, and I am reluctant to present my activities to them for
judgment." Cleveland's famous help constrained the Senate to withdraw and affirm the chosen
people. Besides, Congress at last canceled the questionable Tenure of Office Act that had been
passed during the Johnson Administration. Generally speaking, this implied Cleveland's
Administration denoted the finish of presidential subjection.

Let us examine how the system of checks and balances works in U.S.A -

Legislative

 Writes and authorizes laws

 Enacts charges, approves obtaining, and sets the financial limit
 Has sole capacity to pronounce war
 May start examinations, particularly against the official branch
 The Senate thinks about presidential arrangements of judges and official office heads
 The Senate sanctions settlements
 The House of Representatives may reprimand, and the Senate may evacuate, official
and legal officials
 Sets up government courts aside from the Apex Court, and sets the quantity of judges
on the Apex Court
 May abrogate presidential vetoes

Executive

 May veto laws

 Wages war at the course of (Congress makes the standards for the military)
 Makes announcements or affirmations (for instance, pronouncing a highly sensitive
situation) and declares legitimate guidelines and official requests
 Influences different parts of its plan with the State of the Union location.
 Appoints judges and official division heads
 Has capacity to concede acquittals to indicted people, aside from in instances of
reprimand

Judicial

 Determines which laws Congress proposed to apply to some random case

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 Determines whether a law is illegal. Notwithstanding, this isn't a force given in the
constitution. It was 'made' in Marbury v Madison (1803)
 Determines how Congress implied the law to apply to debates
 Determines how a law demonstrations to decide the mien of detainees
 Determines how a law demonstrations to constrain declaration and the creation of proof
 Determines how laws ought to be deciphered to guarantee uniform approaches in a top-
down design by means of the interests procedure, yet gives circumspection in singular
cases to low-level adjudicators. (The measure of carefulness relies on the standard of
audit, controlled by the sort of case being referred to.)
 Polices its own individuals

INDIA

The Apex Court has, over the few decades, construed the fundamental rights incorporated in
Part III of the Constitution liberally, and for securing their effective implementation adopted
innovative methods which may at times appear to trespass on the legislative and executive
fields. For example, the right to life guaranteed by Article 21 of the Constitution has been
construed as the right to life free from environmental pollution. By issuing a series of guidelines
in a public interest litigation and regular monitoring of their enforcement, the Court has brought
down air pollution in Delhi, the Capital of India.

V. CHALLENGES AHEAD
U.S.A

 Political Challenges

The Constitution commands that the forces of the government be isolated among three free
branches: official, authoritative and legal. Be that as it may, the Judiciary is financed; similar
to every single other piece of the government, through apportionments bills passed by Congress
and marked by the President. You have heard that the Judiciary doesn't have the intensity of
the tote. To be sure, it doesn't; it is needy for its money related job on Congress and the
President.

The Judiciary's money related issues are put together not just with respect to the declining level
of their apportionments yet in addition on the way that 84% of costs comprise of two things
over which it has little control in the close to term-lease and faculty costs.

 Structural Challenges

The declining preliminary rate in common cases has been joined by an unprecedented
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increment in the utilization of private debate goals discussions, for example, discretion and
intervention, which occupy cases from the government courts or, when a case is documented
in administrative court, are turned to either by understanding or by heading from the area court.
A quarter century back, individuals who made their living as authorities or go between were
rare. Today, there is a multitude of them taking care of what used to be court's the same old
thing. Obviously, the extensive pre-preliminary cost coming about because of legal executive's
case the board systems is one explanation.

The expanding dependence on staff that is happening at the re-appraising level because of
taking off caseloads and a reasonable hesitance to manage the taking off caseloads by
expanding the quantity of judges is another reason for concern.

INDIA

 Backlog of pending cases: India's genuine framework has the best excess of pending
cases on the planet – as much as 30 million pending cases. Of them, more than 4,000,000 are
High Court cases, 65,000 Supreme Court cases. This number is constantly broadening and this
itself shows the inadequacy of the certifiable framework.. Additionally, in addition by virtue
of this wealth, a large portion of the detainees in India's remedial offices are prisoners
predicting starter. It is in like way quick and dirty that in Mumbai, India's money related center
point, the courts are wasted time with age-old land examines, which go about as an obstruction
in the city's mechanical movement.
 No interaction with the society: It is critical that the authentic authority of any nation
ought to be a fundamental piece of the general populace and its relationship with the general
populace must be made run of the mill and huge. It is in like way observed that there is duty of
standard inhabitants in legitimate dynamic in two or three nations.
 Appointment of Judges: Recently we saw an ugly battle between the government and
the Indian Judiciary on the issue of appointment of Judges. Even the constitution was amended
and NJAC was brought forth replacing the previous system of collegium. Later we saw how
the Supreme Court upheld NJAC as unconstitutional and restored the old system of collegium.
It is very essential for the healthy development of our democracy that such clashes are avoided.
The issue of appointment is a concern but it must be resolved without conflicts between the
organs of the government.

VI. CONCLUSION
It may fairly be concluded that both the judicial systems are remarkable both in terms of their
organization and the way each has handled the challenges from time to time and evolved with

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the ever changing needs of the society. Judiciary has always remained the guardian of rights of
the citizens.

It goes without a doubt that independence of judiciary is very essential for it to perform
according to expectations and to establish rule of law in the society. As the researcher has
discussed above the judicial systems of both U.S.A and India share sharp contrasts but in the
end they stand for the same principles of equity, justice and good conscience. Whether in terms
of Judicial review of its own decisions or standing firm on maintaining the principles of natural
justice the judiciary has always kept in mind the interest of citizens. Today people have utmost
faith in this organ of government more than other two.

The basic function of judiciary is to interpret law keeping in mind various factors like intention
of legislature and objet of legislation. But over the past decade there has been a major shift in
the role of Judiciary across the globe. They have expanded their functions in the interest of the
citizens and even went further to the extent of giving the directions to the executive and
legislature based on the facts and circumstances of each case. This has increased the role of
judiciary and further expanded its independence and power in the legal realm. On the other
hand today we see some major challenges facing judiciary like appointment of judges, attack
on its independence, corruption and various others. They call for a collective effort to curb such
factors which might restrain impartial functioning of judiciary. There must be a balance
between power and duty. Only then the ideals of democracy will survive and spirits of justice
prevail.

*****

© 2020. International Journal of Law Management & Humanities [ISSN 2581-5369]