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Ayushi Aggrawal,
Gitarattan International Business School
Introduction
As India is the largest democracy in the world, it is nearly impossible to preserve the democracy of the country without having a well-structured, strong and independent judiciary. There are three branches of the government - the Legislature, the executive and the judiciary. The judiciary is that branch which deals with protecting and interpreting the laws while providing justice.
The Indian Judiciary is one of the world’s largest Integrated Judiciary. It has a pyramidal structure where the Supreme Court of India acquires the top position followed by high courts, being the apex court of the state, and at the bottommost level comes the district court and subordinate courts. The judiciary upholds the principle of providing justice without any biases and unfair manner, It is an independent body of the government which ensures the working of the governmental machinery according to the rule of law.
Indian judiciary - History and its Evolution
The Indian judicial system is a single integrated system with the main aim of protecting the constitution of India and providing justice to all. The Indian judiciary is like the foundation of the country’s administrative machinery. Just like a weak foundation can lead to the collapse of the whole building, a weak judicial system can lead to the collapse of the democracy of the country. The concept of law and judiciary as a mechanism of administering or looking after law or rules regulation is not a new concept for the country.
The importance of the judicial system has always been recognized to run society in a chaos-free manner in some way or another. If we look into the history of our country we would find different types of mechanisms which were prominent in some era or another that were performing similar functions to what the judiciary is doing now. Evidence of this can be traced back to the ancient history of the nation.
Judiciary during Ancient India
If we go back to our legal history, we can trace the roots of the presence of judicial structure and laws to the Vedic ages. There was a prevalent concept of Dharma in ancient India which was inspired by the Vedas. These Vedas consist of rules or we can say the code of conduct that is used to regulate the conduct or behaviour of people. Historical texts like Manusriti and Arthashastra are the major evidence that proves the use of legal principles and code of conduct at that time. These rules and regulations had various sources like Customs, religious texts and customized codes. There are written pieces of evidence which suggest the existence of proper courts at that time. Artha-shastra of Kautilya tells about the law courts that were established in sangrahana (which can be classified as districts or tehsils in modern vocabulary). Later it informs about the composition of the courts which used to consist of three jurists and three ministers. It proves the existence of circuit courts.
Katyana Smriti later classifies the existence of various categories of courts - The Kula (family councils), The sherni (trade council), The Ghana (village Assembly), Adhikrita (court appointed by the king), Sasita (kings court), Nripa (king himself).
Evolution of judiciary in medieval India
Later during the era of kings' rule, every kingdom had its own rules and regulations to run their kingdoms. Slowly and gradually the concept of courts was introduced for the justice delivery system in the form of the king's adalt which consisted of his counsellors and ministers. The king was considered the highest authority and acted as the judge. Though there were written rules and regulations, because of having unlimited power the king used to have discretion.
The emergence of the current judicial system during the British Raj
Today’s judicial system which is used in India is strongly influenced by the judicial system of the Britishers that was established in India during colonial rule. The East India Company was responsible for setting up proper courts that are still functioning in various parts of the country. The introduction of the Regulating Act of 1773 by the crown was the source of the establishment of the Supreme Court of Judicature at Calcutta. Several High Courts were also established in different states of India. The first law commission in 1833 was established to codify Indian Law. In conclusion, the British judicial system had positive effects in the construction of the current judicial system functioning in the country.
Role of Indian Judiciary
The judiciary plays a pivotal role in safeguarding the fundamental rights of the citizens because of which it is also known as the custodian of fundamental rights. Not only this but it also stands as a shield to protect the constitution of India and is also considered as the watchdog of the democracy of the country. The role of judiciary is not confined to just providing justice or to maintain democracy. The area of its function expands from the appointment of judges to providing divorce to a couple.
Let’s dive into some details of the role and function of the judiciary.
Administering Justice
As we have discussed before the core function of the judiciary is to administer justice to all. The court provides justice based on the facts of the case and decides what the rule of law says about a certain situation. The cases can vary from disputes arising under the Family law to crimes committed under criminal law. Some cases are handled on humanitarian grounds and some on the basis of the grievances of the case. But no matter what the grounds are rule of law is supreme which means whatever the court decides it must not be contradictory to the rule of law. In India's case, the rule of law is the Constitution of India.
Responsible for making judge-made law
In some cases, where judges find that the parliamentary laws are insufficient for certain cases they recommend parliament to make law on a certain topic or issue. Meanwhile, they can pass some guidelines or decisions that are treated as law in future instances until and unless parliament overturn that guideline or decision or make a new law on that issue. In such cases, the decisions given by the judge are based on their rationale and common sense. These laws are not technically laws because only the parliament have the authority to make laws but thus these decisions or directives are followed as laws they are called judge-made laws or case law.
Interpretation of law
As we know parliament is the organ of the government that has the power to make laws. But the judiciary is the one which has the power to interpret that law. That means even if the parliament is making law, it is the judiciary which would be defining that law. So it gives the judiciary the power to interpret law according to their rationale or what they deem to be appropriate according to both the law and the facts of the case. Sometimes the judiciary expands the definition of law to widen its scope to provide justice.
Protection of Fundamental Rights
Fundamental rights can be considered as the most important rights given to the people of the country. We can support our statement by having a look at Article 32 and Article 226. Article 32 which states Rights to Constitutional Remedies gives us a right to directly approach the Supreme Court by filing a writ petition in case of violation of fundamental rights. Article 226 also provides the same right in the case of high courts. These rights ensure that the fundamental rights of the people are well protected by the judiciary. These articles give the power to the Supreme Court and the High Court to directly entertain petitions related to the violation of fundamental rights and can issue writs.
Writs can be defined as written orders that can be passed by both the Supreme Court of India and the High Court that can order an act or abstain from doing a certain act in order to preserve someone’s Fundamental Right.
There are five writs that can be issued by both the courts:
Habeas Corpus
Habeas Corpus is a Latin word that translates into ‘to have the body’. This writ is issued against the unlawful detention of an individual. This writ can be issued against both the private and public authorities.
Mandamus
The word mandamus means ‘We Command’. This writ is issued when a public officer fails to do his or her duty or refuses to do his or her duty. The writ commands that public officer to resume his or her duty. Mandamus can also be issued against a public body, a lower court, a tribunal, a corporation or the government.
But there are certain cases where a Mandamus cannot be issued:
a. Against a Private Individual
b. Against a department that does not have statutory force
c. Against the President of India or Governors of State
d. Against the Chief Justice of a High Court acting in a judicial capacity
Certiorari
The word Certiori means ‘ to be informed’. The writ can be issued by the higher court against a lower court to transfer a pending case to itself or to quash their order in a certain case. It can be issued on three grounds:
a. In case of use of power outside their jurisdiction
b. In case of lack of jurisdiction or
c. In the case of an error of law
Quo warranto
The word Quo warranto means ‘ by what authority or warrant’. This writ is issued to challenge a person’s right to hold a public office. This writ cannot be issued against a private or ministerial office.
Prohibition
The word prohibition means ‘ to forbid’. This writ is issued to prevent a lower court from exceeding its power out of its jurisdiction. This writ can be issued only against judicial or quasi-judicial authorities.
Judicial review
Judicial review is one of the strongest power that the judiciary have. It empowers the judiciary to review any law made by the parliament and can be struck down in case the law seems to violate the basic structure of the constitution. These laws can be declared unconstitutional and play a major role in the protection of the Constitution of India. As it prevents parliament from making such laws which can disrupt the soul of the constitution. In recent years, the Supreme Court has widened the scope of judicial review by including centre-state conflict or the violation of the jurisdiction of either the legislature or the executive under the ambit of judicial review.
Is the Judiciary Independent?
The judiciary is known as the third pillar of the Indian Administration. The other two are Legislature and Executive. It is an independent body, unlike the legislature and executive which are interdependent in their functioning. This means that the judiciary has the power to function without any pressure or external influence. This ensures unbiased justice delivery to the people which is the core function of the Judiciary. There are various provisions given in the Constitution of India which ensure the independence of the Judiciary. But first, we need to explore what it means by the Independent Judiciary.
In simple terms, the Independence of the Judiciary means that the judiciary is able to work without any force either external or internal that can influence its functioning or decision-making process. These forces are generally tried to be exerted by the legislature or the executive.
From time to time there have been concerns raised about the independence of the judiciary. As written by Dr. B.B. Chaudhry in his book, "Justice which is the soul of the state must be administered without fear or favour."
Structure of Indian Judiciary
We all are aware that the Indian Judiciary works on Hierarchy. Though it is a single integrated system but they do have different levels which makes the working much more efficient.
The hierarchy of the judiciary is in a pyramid-like structure with the apex court at the top of the pyramid, at the peak and subordinate courts at the bottom-most layer at the foot of the pyramid.
The powers and functions of the courts are also distributed on the basis of their position in the hierarchy with the most power residing in the hands of the supreme court and the least powers residing in the lower or subordinate courts.
Let’s study the structure of the Indian Judiciary in much more detail
Supreme Court of India
As discussed earlier, the Supreme Court is the highest court in the country. It was established on 28 January 1950. It is situated in the capital of the country Delhi. The Supreme Court consists of the chief justice of India and up to 30 other judges.
Supreme Court enjoys various powers like original jurisdiction, writs petition, appellate jurisdiction, advisory powers to the president of India and powers like judicial review and entertainment of PILs.
- The decisions of the Supreme Court of India are binding to all the lower courts which means they can only be overruled either by the Supreme Court itself or by the law-making body of the country i.e. parliament.
- The Supreme Court also has the power to transfer judges from one court to another.
- It can also move cases from any of the lower courts to itself as a part of the appellant's jurisdiction.
- It also has the power to transfer cases from one court to another.
High Court of India
The high courts come next in the hierarchy. There are in total 24 high courts in India. The jurisdiction of high courts is limited to a certain state or a group of states. Still high courts are the topmost court of the state. The first high courts were set up in Calcutta, Bombay and Madras in 1866. High courts also consist of the Chief Justice of the State along with other judges.
Like the Supreme Court of India, High Courts also enjoy various powers out of which some are similar to the powers of the Supreme Court. These powers include the power of original jurisdiction, the power to entertain writ petitions and PILs, appellate jurisdiction in both civil and criminal matters and judicial review.
- The high court can hear appeals from lower or subordinate courts
- It can also issue writs for restoring Fundamental Rights
- It can also deal with cases that come under the jurisdiction of the state.
- And lastly, it can supervise and control all the lower courts.
District Courts of India
The district courts come next to the high courts and at the bottom level of the hierarchy. The court work at the district level. That means they have jurisdiction over a certain part of the state. The judges of the District courts are appointed by the governor of that state. These courts are established by the governments of the respective states. The jurisdiction of the court can be over one district or it can be over a group of districts. The jurisdiction is decided on the basis of caseload and the population density of the districts. These courts deal only with the cases which arise within the district of jurisdiction.
There are generally two kinds of courts present :
Civil Courts
Criminal Courts
The presiding judge of the District Court is the District Judge. There can be an appointment of an additional district Judge and Assistant District Judge in the case of a heavy caseload.
Subordinate Court of India
Subordinate courts come at the bottom-most level of the hierarchy. These are the first courts that are approached by the people. These courts can handle both the cases of civil matters and the cases of criminal matters within the district.
Apart from these courts, there are some other courts or mechanisms which are being approached by the people. Although they don’t come under the pyramidal structure of the judiciary but still they are a part of the judicial structure.
Lok Adalats/Village Courts
These courts are administered at the village level. They are a medium that provides the solution by alternate dispute resolution (ADR). ADR is a system which provides people with a way to resolve their disputes without trial. It is a great way to come to a solution without formally approaching the court. It saves time, money and stressful court proceedings. The process of ADR can include mediation, arbitration and neutral evaluation.
Village courts also include the system of Gram Panchayat. Gram Nyayalayas in India were established by the Gram Nyayalayas Act, 2008. Gram Nyayalas deals with both civil and criminal cases. They have jurisdiction over a specified area which is being notified by the high court.
Later, two important amendments were made under the 73rd Amendment Act, of 1992 and the 74th Amendment Act, of 1992. Schedules 11 and 12 were added to the Constitution of India. These two Amendments introduced
The Panchayati Raj system which is rural local government and
Nagar Palikas which is Urban local Government.
Conclusion
We can conclude that the judiciary system of India is a multi-layer system with different powers and roles distributed to the courts at different levels. This distribution of power makes the work of the judiciary efficient and time managing. However, various loopholes in the judicial system need the immediate attention of both the government and the judiciary itself. Various changes are being introduced on a daily basis to make the justice delivery system speedy and more efficient. The quality of the judicial system is kept in mind while introducing these changes. judiciary not only plays a pivotal role in upholding the democracy of the country but is also working as a backbone to support multiple areas of the administration system. This is an amazing fact that the judiciary works based on hierarchy yet is an independent system that ensures the working of society free of chaos.
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