Judiciary in India - Part 3

JUDICIARY IN INDIA - PART 3

1.    Original Jurisdiction 

It means the power of a high court to hear disputes in the first instance, not by way of appeal
      (a) Matters of admirality, will, marriage, divorce, company laws and contempt of court.
     (b) Disputes relating to the election of members of Parliament and state legislatures.
      (c)  Regarding revenue matter or an act ordered or done in revenue collection.
      (d)  Enforcement of fundamental rights of citizens.
     (e)  Cases ordered to be  transferred  from a  subordinate  court involving the  interpretation of the Constitution to its own file.
    (f)  The four high courts (i.e., Calcutta, Bombay, Madras and Delhi High Courts) have original civil jurisdiction in cases of higher value

Before 1973, the Calcutta, Bombay and Madras High Courts also had  original  criminal  jurisdiction. This was fully abolished by the Criminal Procedure Code, 1973

2.    Writ Jurisdiction
•    Article 226 of the Constitution empowers a high court to issue writs including habeas corpus, mandamus, certiorari, prohibition and quo-warrento for the enforcement of the fundamental rights of the citizens and for any other purpose
•    writ jurisdiction of the high court (under  Article 226) is not  exclusive  but   concurrent  with  the  writ jurisdiction of the Supreme Court (under Article 32).
•    when the fundamental rights of a citizen are violated, the aggrieved party has the option of moving either the high court or the Supreme Court directly.
•    the writ jurisdiction of the high court is wider than that of the Supreme Court.
•    This is because, the Supreme Court can issue writs only for the enforcement of  fundamental  rights  and  not  for any other purpose, that is, it does not  extend  to  a  case  where  the  breach  of  an  ordinary  legal  right  is  alleged

3.    Appellate Jurisdiction
•    It has appellate jurisdiction in both civil and criminal matters the appellate jurisdiction of a high court is wider than its original jurisdiction

4.    Supervisory Jurisdiction
•    high court has the power of superintendence over all courts and tribunals functioning in its territorial jurisdiction (except military courts or tribunals) Thus, it may—
      (a)    call for returns from them;
     (b)    make and issue, general rules and prescribe forms for regulating the practice and proceedings of them;
      (c)    prescribe forms in which books, entries and accounts are to be kept by them;and
    (d)    settle the fees payable to the sheriff, clerks, officers and legal practitioners of them.

This power of superintendence of a high court is very broad because,
     (i)    it extends to all  courts  and tribunals  whether they are subject to the appellate jurisdiction of the high court or  not; 
    (ii) it  covers  not  only  administrative superintendence but also judicial superintendence; 

      (iii) it is a  revisional jurisdiction.

      (iv) it can  be suo-motu (on its own) and not necessarily on the application of a party.

•    However, this power does not vest the high court with any unlimited authority over the subordinate courts and tribunals.
•    It is an extraordinary power and hence has to be used most sparingly and only in appropriate cases.
•    Usually, it is limited to, (i) excess of jurisdiction, (ii) gross violation of natural justice, (iii) error of law, (iv) disregard to the law of superior courts, (v) perverse findings, and (vi) manifest injustice.

5.    Control over Subordinate Courts
•    a high court has an administrative control and other powers over them
     (a)    It is consulted by the governor in the matters of appointment, posting and promotion of  district judges and  in the appointments of persons to the judicial service of the state (other than district judges).
    (b)    It deals with the matters of posting,  promotion,  grant  of leave,  transfers  and  discipline  of the members of the judicial service of the state (other than district judges).
     (c)    It can withdraw a case pending in a subordinate court if it involves a substantial question of law that require the interpretation of the Constitution. It can then either dispose of the case itself or determine the question of law and return the case to the subordinate court with its judgement.
     (d)    Its law is binding on all subordinate courts functioning within its territorial jurisdiction in  the same sense as the law declared by the Supreme Court is binding on all courts in India

6.    A Court of Record
As a court of record, a high court has two powers:
      (a)    The judgements, proceedings and acts of the high courts are recorded for perpetual memory and testimony. These records are admitted to be of evidentiary value and cannot be questioned when  produced  before any subordinate court. They are recognised as legal precedents and legal references.
     (b)    It has power to punish for contempt of court, either with simple imprisonment or with fine or with both.
•    The expression ‗contempt of court‘ has not been defined by the Constitution
•    the expression has been defined by the Contempt of Court Act of 1971. Under this, contempt of court may be civil or criminal.
•    Civil contempt means wilful disobedience to any judgement, order, writ or other process  of a court  or  wilful breach of an undertaking given to a court.
•    Criminal contempt means the publication of any matter or doing an act which—(i) scandalises or lowers the authority of a court; or (ii) prejudices or interferes with the due course of a judicial proceeding; or (iii) interferes or obstructs the administration of justice in any other manner.

7.    Power of Judicial Review:
•    Judicial review is the power of a high court to examine the constitutionality of legislative enactments and executive orders of both the Central and state governments,
•    Though the phrase ‗judicial review‘ has no where been used in the Constitution, the provisions of Articles 13 and 226 explicitly confer the power of judicial review on a high court
•    The 42nd Amendment Act of 1976 curtailed the judicial review  power  of high court.  It  debarred  the  high courts from considering the constitutional validity of any central law. However, the  43rd  Amendment Act of 1977 restored the original position.

 Subordinate Courts - Judiciary of India:
•    The Subordinate Courts are subordinate to State High Courts.
•    These Courts functions under high court at district and other lower level.
•    Article 233 to 237 of the Constitution deals with the Subordinate Court.

Structure of the Subordinate Court:

Powers:
•    The district judge is the highest judicial authority in the district.
•    He has original and appellate jurisdiction in both civil and criminal matters.
•    He possesses all supervisory powers over all the subordinate courts in the districts.
•    Session judge has the power to impose life imprisonment and capital punishment.

Appointment of various Judges:
•    District judge – By the Governor of State with the consultation of High Court.
•   Other judges – By governor of state after consultation with the state public service commission.
•    Control over Subordinate Courts -the posting, promotion and leave of persons belonging to the judicial service of a state and holding any post inferior to the post of district judge is vested in the high court.
•    Interpretation –‘district judge‘ includes judge of a city civil court, additional district judge, joint district judge, assistant district judge, chief judge of a small cause court, chief presidency magistrate, additional chief presidency magistrate, sessions judge, additional sessions judge and assistant sessions judge
•    expression –‘judicial service‘ means a service consisting exclusively of persons intended to fill the post of district judge and other civil judicial posts inferior to the post of district judge.
•    Application of the above Provisions to Certain Magistrates
    (i)    Governor may direct that the above mentioned provisions relating to persons in the state judicial service would apply to any class or classes of magistrates in the state
    (ii)    district judge is the highest judicial authority in the district, When he deals with civil cases,  he is  known as the district judge and when he hears the criminal cases, he is called as the sessions judge

A person to be appointed as district judge should have the following qualifications:
•    He should not already be in the service of the Central or the state government.
•    He should have been an advocate or a pleader for seven years.
•    He should be recommended by the high court for appointment.

Administrative Tribunal:
•    Article 323 A deals with administrative tribunals.
•    These are set up to settle disputes related to recruitment in public services.
•    Parliament has power to settle the disputes.
•    Central administrative tribunal for the centre and state administrative tribunal for states has been established.

Salaries & Allowances:
•    The Salary is determined by the Government of India.
•    At the same time, Sumptuous allowances, free accommodation, and various other facilities are also provided to them.

Lok Adalats:
•    Lok Adalats are known as people’s court. Established by the government to settle the disputes through conciliation and compromise.
•    The first Lok Adalat was held in Chennai in 1986. It is presided by sitting or retired judicial officer as chairman and two other members.
•    There is no court fee. The decision of Lok Adalat's is binding on the parties to the dispute.

Judiciary In India
The Indian constitution provides for an integrated judicial system with the Supreme Court as the apex court and the High courts below it.
Supreme Court:
The supreme court of India is the highest court of appeal in India.
Important Points to Remember:
1.   The Supreme court of India was inaugurated on Jan 28, 1950.
2.   Articles 124 to 147 in Part V of the constitution deals with the Supreme court.
3.   Composition 31 (30+1)
       a.   1 - Chief Justice of India
       b.   30 - Other Judges
4.   Qualifications
       a.    Should be a citizen of India
       b.    should have been
              i.    a judge of a High court for 5 years or
              ii.    an advocate of a High Court for 10 years or
              iii.    a distinguished jurist in the opinion of the president
5.    Minimum Age: Not prescribed in the constitution.
6.    Tenure: Until 65 Years of Age.
7.    Judges of the supreme court was appointed by the President.
8.    Indian Constitution follows the 'procedure established by law'.
9.    American Constitution follows the 'due process of law'.
10.  Article 143: The power of the President to consult the Supreme Court
     a.    The opinion rendered by the Supreme court is not binding on the President.

Emergency Provisions:
 The Emergency provisions in Indian constitution enables the central government to have more power to face any unforeseen situation effectively.

Aim:
 To safeguard the sovereignty and to tackle the security threat to the country including financial crisis.

3 Types of Emergencies:
1. National Emergency [Article 352]
•    When the security of India or of any part of the territory is threatened, whether by war or external aggression (External Emergency) or armed rebellion (Internal Emergency), the president can declare national emergency.
•    The president can proclaim the national emergency even before its actual occurrence if the President is satisfied that there is imminent danger.
 

2. President's Rule [Article 356]
•    The President can proclaim the president's rule in a state if the president, on receipt of a report from the Governor of a State or otherwise (even without the report), is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution.

3. Financial Emergency [Article 360]
•    The President can declare a Financial emergency, if the President is satisfied that a situation
has arisen whereby the financial stability or credit of India or of any part of the territory thereof is threatened.