LEGAL AND CONSTITUTIONAL HISTORY

--------------------JUDICIARY SYSTEM IN INDIA-------------------

Submitted By:- Submitted To:

Sourav goel Tanvi maam
Roll no:- 22739
BBA.LLB.(2nd sem) Geeta Institute Of Law

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 LEGAL AND CONSTITUTIONAL HISTORY

Judiciary system in India

Supreme Court:-
The Supreme Court of India is the highest court of the land as established by Part V,
Chapter IV of the Constitution of India. According to the Constitution of India, the role
of the Supreme Court is that of a federal court, guardian of the Constitution and the
highest court of appeal. Articles 124 to 147 of the Constitution of India lay down the
composition and jurisdiction of the Supreme Court of India. Primarily, it is an appellate
court which takes up appeals against judgments of the provincial High Courts. But it also
takes writ petitions in cases of serious human rights violations or if a case involves a
serious issue that needs immediate resolution.

Composition of the courts:-

The supreme court of India consist if a chief justice and, until parliament may by law
prescribed a large number, not more than seven other judges. Thus parliament increase
the number this number, by law. Originally the total numbers of judges were seven but in
1977 this was increased to 17 excluding the chief justice. In 1986 this number has been
increased to 25 excluding the chief justice. Thus the total number of judges in the
Supreme Court at present is 26 including the chief justice. The constitution does not
provide for the minimum number of judges who will constitute a bench for hearing cases.

Qualification of the judges of the supreme court of India:-

The qualifications of the judges are as follows:- Under Art. 124(3) of the constitution talk
about the qualifications of judges that are:

a) He should be a citizen of India.

b) He should have been at least five year a judge of a high court or of two or more such
courts in succession; or he should have been for at least 10 years an advocate of high
court or of two or more such court in succession.

c) He is in the opinion of the president a distinguished jurist.

Appointment of judges:
The judges of the high court are appointed by the president. The chief justice of Supreme

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Court is appointed by the president with the consultation of such of judges of the supreme
and high court as he deemed necessary for the purpose. But in appointment of the other
judges the president shall always consult the chief justice of India. He may consult he
may consult such other judges of the supreme court and high court as he may deemed
necessary. It should, however be noted that the power of the president to appoint judges
is purely formal because in this matter he act on the advice of the council of ministers.
There was a apprehension that executive may bring politics in the appointment of the
judges. The Indian constitution therefore does not leave the appointment of judges on the
discretion of the executive. The executive under this art. Is required to consult persons
who are ex-hypothesis well qualified to give proper advice in matters of appointment of
judges.

Under Art. 124(2) the president, in appointment other judges of the supreme court is
bound to consult chief justice of India but in appointment the chief justice of India he is
not bound to consult anyone. The word may used in art 124 makes clear that it is not
mandatory on him to consult anyone.

Removal of judges:- Impeachment:-Art.124(4)(5):-

A judge may only be removed from his office by an order of the president on ground of
proved misbehavior or incapacity. The order of the president can only be passed after it
has been addressed to both houses of parliament in the same session. The address must be
supported by a majority of total membership of that house and also by the majority not
less than 2/3 of the members of that house present or voting. The processor of the
investigation and proof of the misbehavior or incapacity of a judge will be determined by
the parliament by law. The security of the tenure of the Supreme Court judges has been
ensured by this provision of the constitution.

Jurisdiction of Supreme Court[1]

Article 129 states: Supreme Court to be a court of record.—The Supreme Court shall be a
court of record and shall have all the powers of such a court including the power to
punish for contempt of itself.

The Supreme Court has original, appellate and advisory jurisdiction as well.

Original jurisdiction
Article 131 states: Original jurisdiction of the Supreme Court.—Subject to the provisions
of this Constitution, the Supreme Court shall, to the exclusion of any other court, have
original jurisdiction in any dispute—

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(a) Between the Government of India and one or more States; or

(b) Between the Government of India and any State or States on one side and one or more
other States on the other; or

(c) Between two or more States,

Appellate Jurisdiction
Article 132 states: Appellate jurisdiction of Supreme Court in appeals from High Courts
in certain cases

Art. 132 (1) states ‘An appeal shall lie to the Supreme Court from any judgment, decree
or final order of a High Court in the territory of India, whether in a civil, criminal or other
proceeding, if the High Court certifies under article 134A that the case involves a
substantial question of law as to the interpretation of this Constitution.’

Art. 132 (3) states ‘Where such a certificate is given, any party in the case may appeal to
the Supreme Court on the ground that any such question as aforesaid has been wrongly
decided.’

Article133 states: Appellate jurisdiction of Supreme Court in appeals from High Courts
in regard to civil matters.

Art. 133 (1) states ‘An appeal shall lie to the Supreme Court from any judgment, decree
or final order in a civil proceeding of a High Court in the territory of India if the High
Court certifies under article 134A’.Certain preconditions are:

(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.

Art. 133 (2) states ‘Notwithstanding anything in article 132, any party appealing to the
Supreme Court under clause (1) may urge as one of the grounds in such appeal that a
substantial question of law as to the interpretation of this Constitution has been wrongly
decided.’

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Art. 133 (3) states ‘notwithstanding anything in this article, no appeal shall, unless
Parliament by law otherwise provides, lie to the Supreme Court from the judgment,
decree or final order of one Judge of a High Court.’

Article 134 states: Appellate jurisdiction of Supreme Court in regard to criminal matters.

Art. 134 (1) states ‘An appeal shall lie to the Supreme Court from any judgment, final
order or sentence in a criminal proceeding of a High Court in the territory of India if the
High Court.’

(a) The High Court has on appeal reversed an order of acquittal of an accused person and
sentenced him to death; or

(b) The High Court has withdrawn for trial before itself any case from any court
subordinate to its authority and has in such trial convicted the accused person and
sentenced him to death; or

(c) The High Court certifies under article 134A that the case is a fit one for appeal to the
Supreme Court:

Provided that an appeal under sub-clause (c) shall lie subject to such provisions as may
be made in that behalf under clause (1) of article 145 and to such conditions as the High
Court may establish or require.

Art. 134 (2) states ‘Parliament may by law confer on the Supreme Court any further
powers to entertain and hear appeals from any judgment, final order or sentence in a
criminal proceeding of a High Court in the territory of India subject to such conditions
and limitations as may be specified in such law.’

Article 136 states: Special leave to appeal by the Supreme Court.

Article 136 (1) states ‘Notwithstanding anything in this Chapter, the Supreme Court may,
in its discretion, grant special leave to appeal 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.’

Article 136 (2) states ‘Nothing in clause (1) shall apply to any judgment, determination,
sentence or order passed or made by any court or tribunal constituted by or under any law

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relating to the Armed Forces.’

Article 137 states: Review of judgments or orders by the Supreme Court.— Subject to the
provisions of any law made by Parliament or any rules made under article 145, the made
by it.

Article 139A states: Transfer of certain cases.—

Article 139A (1) states ‘Where cases involving the same or substantially the same
questions of law are pending before the Supreme Court and one or more High Courts or
before two or more High Courts and the Supreme Court is satisfied on its own motion or
on an application made by the Attorney-General of India or by a party to any such case
that such questions are substantial questions of general importance, the Supreme Court
may withdraw the case or cases pending before the High Court or the High Courts and
dispose of all the cases itself:

Provided that the Supreme Court may after determining the said questions of law return
any case so withdrawn together with a copy of its judgment on such questions to the High
Court from which the case has been withdrawn, and the High Court shall on receipt
thereof, proceed to dispose of the case in conformity with such judgment.’

Article 139A (2) states ‘The Supreme Court may, if it deems it expedient so to do for the
ends of justice, transfer any case, appeal or other proceedings pending before any High
Court to any other High Court.’

Article 141 states: Law declared by Supreme Court to be binding on all courts.— ‘The
law declared by the Supreme Court shall be binding on all courts within the territory of
India.’

Advisory Jurisdiction
Article 143 states: Power of President to consult Supreme Court. —
Article 143 (1) states ‘If at any time it appears to the President that a question of law or
fact has arisen, or is likely to arise, which is of such a nature and of such public
importance that it is expedient to obtain the opinion of the Supreme Court upon it, he
may refer the question to that Court for consideration and the Court may, after such
hearing as it thinks fit, report to the President its opinion thereon.’

Article 143 (2) states ‘The President may, notwithstanding anything in the proviso to
article 131, refer a dispute of the kind mentioned in the said proviso to the Supreme Court

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for opinion and the Supreme Court shall, after such hearing as it thinks fit, report to the
President its opinion thereon.’

High Court
India's judicial system is made up of the Supreme Court of India at the apex of the
hierarchy for the entire country and twenty-one High Courts at the top of the hierarchy in
each State. These courts have jurisdiction over a state, a union territory or a group of
states and union territories. Below the High Courts are a hierarchy of subordinate courts
such as the civil courts, family courts, criminal courts and various other district courts.
High Courts are instituted as constitutional courts under Part VI, Chapter V, and Article
214 of the Indian Constitution

The High Courts are the principal civil courts of original jurisdiction in the state, and can
try all offences including those punishable with death.

Jurisdiction of High Court

Article 226 states: Power of High Courts to issue certain writs.

Article 226 (1) states ‘Notwithstanding anything in article 32 every High Court shall have
power, throughout the territories in relation to which it exercises jurisdiction, to issue to
any person or authority, including in appropriate cases, any Government, within those
territories directions, orders or writs, including writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement
of any of the rights conferred by Part III and for any other purpose.’

Article 226 (2) states ‘The power conferred by clause (1) to issue directions, orders or
writs to any Government, authority or person may also be exercised by any High Court
exercising jurisdiction in relation to the territories within which the cause of action,
wholly or in part, arises for the exercise of such power, notwithstanding that the seat of
such Government or authority or the residence of such person is not within those
territories.’

Article 226 (3) states ‘Where any party against whom an interim order, whether by way
of injunction or stay or in any other manner, is made on, or in any proceedings relating to,
a petition under clause (1), without—

(a) Furnishing to such party copies of such petition and all documents in support of the
plea for such interim order; and

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(b) Giving such party an opportunity of being heard,

makes an application to the High Court for the vacation of such order and furnishes a
copy of such application to the party in whose favor such order has been made or the
counsel of such party, the High Court shall dispose of the application within a period of
two weeks from the date on which it is received or from the date on which the copy of
such application is so furnished, whichever is later, or where the High Court is closed on
the last day of that period, before the expiry of the next day afterwards on which the High
Court is open; and if the application is not so disposed of, the interim order shall, on the
expiry of that period, or, as the case may be, the expiry of the said next day, stand
vacated.’

Article 226 (4) states ‘The power conferred on a High Court by this article shall not be in
derogation of the power conferred on the Supreme Court by clause (2) of article 32.’

Writ jurisdiction:-
Habeas Corpus:- (Latin: You (shall) have the body) is a legal action, or writ, through
which a person can seek relief from the unlawful detention of him or herself, or of
another person. It protects the individual from harming him or herself, or from being
harmed by the judicial system. The writ of habeas corpus has historically been an
important instrument for the safeguarding of individual freedom against arbitrary state
action.

Mandamus:- simply mandamus, means "we command" in Latin, is the name of one of

the prerogative writs in the common law, and is "issued by a superior court to compel a
lower court or a government officer to perform mandatory or purely ministerial duties
correctly".

Mandamus is a judicial remedy which is in the form of an order from a superior court to
any government, subordinate court, corporation or public authority to do or forbear from
doing some specific act which that body is obliged under law to do or refrain from doing,
as the case may be, and which is in the nature of public duty and in certain cases of a
statutory duty. It cannot be issued to compel an authority to do something against
statutory provision.

Quo Warranto:- quo warranto usually arises in a civil case as a plaintiff's claim (and
thus a "cause of action" instead of a writ) that some governmental or corporate official

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was not validly elected to that office or is wrongfully exercising powers beyond (or ultra
vires ) those authorized by statute or by the corporation's charter.

Certiorari:- certiorary is a legal term in Roman, English, and American law referring to

a type of writ seeking judicial review. Certiorari ("to be shown") is the present passive
infinitive of Latin certiorari, ("to show, prove or ascertain"). A writ of certiorari currently
means an order by a higher court directing a lower court, tribunal, or public authority to
send the record in a given case for review.

Prohibition:- prohibition is an official legal document drafted and issued by a Supreme

Court or superior court to a judge presiding over a suit in an inferior court. The writ of
prohibition mandates the inferior court to cease any action over the case because it may
not fall within that inferior court's jurisdiction. The document is also issued at times when
it is deemed that an inferior court is acting outside the normal rules and procedures in the
examination of a case. In another instance, the document is issued at times when an
inferior court is deemed headed towards defeating a legal right.

Prohibition and certiorari lie only against judicial and quasi-judicial bodies. They do not
lie against public authority in an executive or administrative capacity or a legislative
body.

Article 227 states: Power of superintendence over all courts by the High Court.— Article
227 (1) states ‘Every High Court shall have superintendence over all courts and tribunals
throughout the territories in relation to which it exercises jurisdiction.’

Article 227 (2) states ‘Without prejudice to the generality of the foregoing provision, the
High Court may—

(a) Call for returns from such courts;

(b) Make an issue general rules and prescribe forms for regulating the practice and
proceedings of such courts; and

(c) Prescribe forms in which books, entries and accounts shall be kept by the officers of
any such courts.

Article 227 (3) states ‘The High Court may also settle tables of fees to be allowed to the
sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders

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practicing therein: Provided that any rules made, forms prescribed or tables settled under
clause (2) or clause (3) shall not be inconsistent with the provision of any law for the time
being in force, and shall require the previous approval of the Governor.

Article 227 (4) states ‘Nothing in this article shall be deemed to confer on a High Court powers of
superintendence over any court or tribunal constituted by or under any law relating to the Armed
Forces.’

Lower Courts:-
States are divided into districts (zillas), and within each a judge presides as a district
judge over civil cases. A sessions judge presides over criminal cases. The judges are
appointed by the governor in consultation with the state's high court. District courts are
subordinate to the authority of their high court.

There is a hierarchy of judicial officials below the district level. Many officials are
selected through competitive examination by the state's public service commission. Civil
cases at the sub district level are filed in munsif (sub district) courts. Lesser criminal
cases are entrusted to the courts of subordinate magistrates functioning under the
supervisory authority of a district magistrate. All magistrates are under the supervision of
the high court. At the village level, disputes are frequently resolved by Panchayat or Lok
Adalat (people's courts).

The judicial system retains substantial legitimacy in the eyes of many Indians despite its
politicization since the 1970s. In fact, as illustrated by the rise of social action litigation
in the 1980s and 1990s, many Indians turn to the courts to redress grievances with other
social and political institutions. It is frequently observed that Indians are highly litigious,
which has contributed to a growing backlog of cases. Indeed, the Supreme Court was
reported to have more than 150,000 cases pending in 1990, the high courts had some 2
million cases pending, and the lower courts had a substantially greater backlog. Research
findings in the early 1990s show that the backlogs at levels below the Supreme Court are
the result of delays in the litigation process and the large number of decisions that are
appealed and not the result of an increase in the number of new cases filed. Coupled with
public perceptions of politicization, the growing inability of the courts to resolve disputes
expeditiously threatens to erode the remaining legitimacy of the judicial system.

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Hierarchy of Courts in Criminal matters

* Supreme Court
* High Court
* Sessions Court
* Assistant Sessions Judge         * Chief Metropolitan Magistrate            * Chief
Judicial   Magistrate
* Metropolitan  Magistrate                                      * Special Metropolitan Magistrate
Sub Divisional                                        Judicial Magistrate
* Judicial Magistrate of                                                                          * Judicial
Magistrate of
First Class                                                                                                     Second Class
Powers and punishments given by different Courts under
sessions court:
· Sessions court: Life imprisonment and below, no death penalty and fine.
· Assistant Sessions Judge: Up to 10 years and fine.
· Chief Metropolitan magistrate: Up to 7 years and fine.
· Chief Judicial Magistrate: Up to 7 years and fine.
· Sub Divisional Judicial Magistrate: Up to 3 years and Rs. 10,000 fine.
· Judicial Magistrate Of First Class (Taluka level): Up to 3 years and Rs.10,000 fine.
· Judicial Magistrate Of Second Class (Taluka level): Up to 1 year and Rs.5,000 fine.
· Metropolitan magistrate: Up to 3 years and Rs. 10,000 fine.
· Special Metropolitan magistrate: Up to 3 years and Rs. 10,000 fine.

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