Judiciary of India
The judiciary is a system of courts which interpret and apply the law. The role of the courts is to decide cases by determining the relevant facts and the relevant law, and applying the relevant facts to the relevant law. The Indian Judiciary administers a common law system in which customs, securities and legislation, all codify the law of the land. It has, in fact, inherited the legacy of the legal system established by the then colonial powers and the princely states since the mid-19th century, and has partly retained the characteristics of practices from the ancient and medieval times.
The Indian Judicial system is totally managed and administrated by officers of judicial service unlike in the past when civil service officers also were part of judicial system. As per the Constitution of India, judicial service in India is an arm of the All India Services but, due to various reasons, judges are appointed through the respective state public service commissions or by the High Court up to the post of district judge. Judges of the High Court and Supreme Court are appointed by the President of India on the recommendation of a collegium. The Judicial system of India is classified into three levels with subsidiary parts.
The Supreme Court of India, also known as the Apex Court, is the top court and the last appellate court in India, and the Chief Justice of India is its top authority. High Courts are the top judicial bodies in the states controlled and managed by Chief Justices of States. Below the High Court are District Courts, also known as subordinate courts, controlled and managed by the District & Sessions Judges. The subordinate court system is further classified into two: the civil court of which a Sub-Judge is the head followed by the munsif court at the lower level, and the criminal court headed by Chief Judicial/Metropolitan Magistrate at top and followed by ACJM /ACMM & JM/MM at the lower level.
The another court is executive & revenue court which are managed and controlled by state government through District Magistrate & Commissioner, respectively. Although the executive courts are not the part of judiciary but various provisions and judgements empower the High Courts and the Session Judges to inspect or direct the working of executive courts.
The Ministry of Law & Justice at the Union level is responsible for raising issues before parliament for the proper functioning of the judiciary. The Ministry of Law & Justice has complete jurisdiction to deal with the issues of any courts of India, from SC to Subordinate and Executive Courts. It also deals with the appointment of Judges of the High Courts and the Supreme Court. At the state level, the law departments of the states deal with the issues of the High Court and the Subordinate Courts.
The Constitution and the Judiciary
The relation between Judiciary and Constitution is that Constitution empower Judiciary to act as the Guardian of the Law. Therefore in common language can say Judiciary is itself a constitution but this does not mean that the court have unlimited power because in India the doctrine of Constitutionalism also applied. However, there are number of provision which specifically deals with the Indian Judiciary role, power & function and appointment of officer. Under the Constitution of India the major provisions are-- Part V - Chapter IV - Deals with Union Judiciary i.e., Supreme Court - appointment & removal, role & function
- Part VI - Chapter V - Deals with High Court - appointment & removal, role & function
- Part VI - Chapter VI- Deals with Subordinate Courts - appointment & removal, role & function
- Article 50 - Independence of Judiciary - which separates judiciary from executive
- Other provision are also under various parts & Articles which deals with the court responsibility.
E-courts in India''
Appointment
As per legal provision, the appointment of -- Supreme Court & High Court Judge should be done by the President of India with the consent of Chief Justice of India provided Under Part V & VI.
As per the Three Judges Cases –, a judge is appointed to the Supreme Court and the High Courts by the President of India from a list of names recommended by the collegium – a closed group of the Chief Justice of India and the senior-most judges of the Supreme Court, for appointments to the Supreme Court, and they, together with the Chief Justice of a High Court and its senior-most judges, for appointments to that court. This has resulted in a Memorandum of Procedure being followed, for the appointments.
Judges used to be appointed by the President on the recommendation of the Union Cabinet. After 1993, as held in the Second Judges' Case, the executive was given the power to reject a name recommended by the judiciary. However, according to some, the executive has not been diligent in using this power to reject the names of bad candidates recommended.
Earlier, one recommendation by a collegium came to be challenged in court. The court held that who could become a judge was a matter of fact, and any person had a right to question it. But who should become a judge was a matter of opinion and could not be questioned. As long as an effective consultation took place within a collegium in arriving at that opinion, the content or material placed before it to form the opinion could not be called for scrutiny in a court.
- However, unlikely from the SC & HC judges appointments the Subordinate court Judges, appointments are done as per the statutory provision mentioned under Constitution & other Acts/Code. The appointment generally done by the State Public Service Commission but in few states High Court also appoint but procedure of appointments are same i.e., through a competitive examination. The direct appointment made on two post -
2. District Judge - Higher Judicial Service Exam
History
Jury trial
The first jury trial decided by an English jury in India happened in Madras in 1665, for which Ascentia Dawes was charged by a grand jury with the murder of her slave girl, and a petty jury, with six Englishmen and six Portuguese, found her not guilty. With the development of the East India Company empire in India, the jury system was implemented inside a dual system of courts: In Presidency Towns, there were Crown Courts and in criminal cases juries had to judge British and European people and in some cases Indian people; and in the territories outside the Presidency Towns, there were Company Courts without jury to judge most of the cases implying indigenous people.After the Crown Government of India adopted the Indian Penal Code and the Indian Code of Criminal Procedure, the criminal jury was obligatory only in the High Courts of the Presidency Towns; elsewhere, it was optional and rarely used. According sections 274 and 275 of the Code of Criminal Procedure, the jury was composed from 3 to 9 men; and when the accused were British and European, at least half of the jurors had to be British and European men.
The jury found no place in the 1950 Indian Constitution, and it was ignored in many Indian states. The Law Commission recommended its abolition in 1958 in its 14th Report. Jury trials were abolished in India by a very discrete process during the 1960s, finishing with the 1973 Code of Criminal Procedure, which is still in force today.
The 8:1 acquittal of Kawas Nanavati in K. M. Nanavati v. State of Maharashtra was overturned by higher courts on the grounds that the jury was misled by the presiding judge and were susceptible to media and public influence. A study by Elisabeth Kolsky argues that many "perverse verdicts" were delivered by white juries in trial of "European British subjects" charged with murder, assault, confinement of Indians.
Evolution of independent judiciary
The Sapru committee’s report, published in 1945, considered the question of the judiciary in some detail, reiterating what the Government of India Act 1935 had set out.: there would be a Federal Court of India which would be the forerunner to the Supreme Court. To separate the judiciary from the executive, the Sapru committee suggested that judges should have fixed salaries and tenures, and that they could only be removed for gross misbehaviour. Judges were to be appointed by the president, in consultation with the CJI. The committee appointed to deal with judicial questions as part of the Constituent Assembly in 1946 was influenced by the Sapru report, though there was concern over the degree of power given to presidential will. Nehru However supported the Sapru Committee's suggestions. In 1949, Nehru told the Constituent Assembly judges ought to be to be individuals of “the highest integrity,” who could “stand up against the executive government, and whoever may come in their way.” BR Ambedkar emphasized the need for judicial independence as well, saying that: “There can be no difference of opinion in the House that our judiciary must both be independent of the executive and must also be competent in itself.” Finally, the constitution stated that “Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose,” given that “in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted.”Career progression
The career progression of a judicial officer can reach up to the Chief Justice of India. However, till now no judicial officer has been elevated to this level but a few have made up to the Judge of Supreme Court. The judicial officer starts her career as a Judicial Magistrate First Class in the cadre of Civil Judge. The candidates are also appointed on the post of District Judge directly from the bar through the same competitive examination but with a condition that they must possess seven years of practice experience in any court of India.The post of Judicial Magistrate Second Class is considered a probation or training post and after completing the training period they are posted as Judicial Magistrate First Class. Unlike the Union civil service officers, the judicial position is mostly a field position. For better and wider experience, a large number of deputation posts have been created for the lower judiciary to the higher judiciary officers. In their beginning of their career, they are not placed on deputation but after few years of courtroom experiences then they are placed on deputation as per requirement.
After spending more than five years in junior division, one is eligible to be promoted to the rank of Civil Judge. The First National Judicial Pay Commission was founded that due to the slow promotion process many officers retire before attaining the upper stage of judiciary or are stuck long in the same cadre whereas the provision was that an officer eligible to get elevated after five year of experience in that cadre.
With the suggested recommendation by NJPC, the Assured Career Progression scheme was introduced for the subordinate judicial officer to assure them career prospects if there is delay in promotion. According to it, if there is delay in the promotion then after a span of every five years of service in respective grade they are entitled to draw Ist stage of ACP pay scale for next five years means their pay scale automatically increase and subsequently follow 2nd ACP if another five-year lapse crosses which is equivalent pay to the next promotional post.
The same methodology is applied to the District Judge level also. After completing the required years of service in the senior division the High Court, with the consent of the Governor of teh respective state, they are promoted to the cadre of District Judge i.e., Additional District & Session Judge as per vacancies. When the judges in the rank of DJ are also vested with the administrative power then they are known as District & Sessions Judge of the respective district.
The officer of Jr. & Senior division are under the general control & subordinate to District & Session Judges and also to CJMs. ADJs are under the general control of respective high courts. They are also vested with special power as Special Judge / Magistrate to deal with particular or specific matters like to deal with railway magistrate, CBI Judge / Magistrate, etc. Generally, Judicial Officer who started their career late as JM-Ist Class, have low chance of being promoted into the cadre of High Court Judges, but if they join the service in early have high chance to upgrade higher. However, there are 60% of the post of High Court Judges are filled from the Subordinate Judiciary. But due to very stiff process for the appointment as High Court Judge, it take much time. However, there were few Judges who were also promoted to the Supreme Court of India like Prafulla Chandra Pant. Most of the Judicial officers appointed directly from bar in the cadre of District Judge i.e., higher judicial service, have high probability to reach up to the High Court and if the services remain then even up-to the Supreme Court.
With the purpose of enhancing the skills and out field experience of judges they are also deputed various department / ministries of state & union government with consultation of respective High Court. In state many position are created for the judicial officer ranging from the level of Deputy Secretary to Principal Secretary of states. Also, they are posted in Union ministries to in the level of Deputy Secretary to Secretary to GoI level. They mostly sent on deputation in the High Courts & Supreme Court in equivalent position exist for civil service officers in ministries as per pay scale. The significant deputation post mentioned in the table below. Not limited to only that post but there are many more deputation post constructed accordingly with the Judicial ranking on a temporary basis.
Judicial Hierarchy & Salary
| Rank | Court Post | Deputation ' Post''' | Cadre | Service | Current Pay Scale | Proposed Pay Scale |
| 1 | Chief Justice of India | No deputation post for Hon'ble S.C. & H.C. Judges | Justice Cadre | Justice Grade | ₹2,80,000 | Pay scale already increased |
| 2 | Justice of the Supreme Court | No deputation post for Hon'ble S.C. & H.C. Judges | Justice Cadre | Justice Grade | ₹2,50,000 | Pay scale already increased |
| 3 | Chief Justice of the High Court | No deputation post for Hon'ble S.C. & H.C. Judges | Justice Cadre | Justice Grade | ₹2,50,000 | Pay scale already increased |
| 4 | Justice of the High Court | No deputation post for Hon'ble S.C. & H.C. Judges | Justice Cadre | Justice Grade | ₹2,25,000 | Pay scale already increased |
| 5 |
| District & Session Judge Cadre | Superior / Higher Judicial Service | |||
| 6 | District & Session Judge Cadre | Superior / Higher Judicial Service | ||||
| 7 | Civil Judge | Lower Judicial Service | ||||
| 8 |
| Civil Judge | Lower Judicial Service | |||
| 9 | Judicial Magistrate 2nd Class | N/A | Civil Judge Grade | Lower Judicial Service |
Supreme Court of India
The supreme court is the highest court of the country or nation, which is established by the Constitution. According to it, the Supreme Court is a federal court, guardian of the Constitution and the highest court of appeal. Articles 124 to 147 of the Constitution lay down the composition and jurisdiction of the Court. Primarily, it is an appellate court which takes up appeals against judgments of the High Courts of the states and territories. However, it also takes writ petitions in cases of serious human rights violations or any petition filed under Article 32 which is the right to constitutional remedies or if a case involves a serious issue that needs immediate resolution. It had its inaugural sitting on 26 January 1950, the day India's constitution came into force, and since then has delivered more than 24,000 reported judgements.The Supreme Court comprises the Chief Justice and 33 other Judges.
The proceedings of the Supreme Court are conducted in English only.
The Supreme Court Rules of 1966 are framed under Article 145 of the Constitution to regulate the practice and procedure of the Supreme Court. The same is amended and presently governed by the Supreme Court Rules of 2013.
High courts
There are 25 High Courts at the State level. of the Constitution of India mandates that they are bound by the judgements and orders of the Supreme Court of India by precedence. 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, Article 214 of the Indian Constitution.The High Courts are the principal civil courts of original jurisdiction in the state along with District Courts which are subordinate to the High courts. However, High courts exercise their original civil and criminal jurisdiction only if the courts subordinate to the high court in the state are not competent to try such matters for lack of pecuniary, territorial jurisdiction. High courts may also enjoy original jurisdiction in certain matters if so designated specifically in a state or Federal law. e.g.: Company law cases are instituted only in a high court.
However, primarily the work of most High Courts consists of Appeals from lower courts and writ petitions in terms of of the Constitution of India. Writ Jurisdiction is also original jurisdiction of High Court. The precise territorial jurisdiction of each High Court varies
Judges in a high court are appointed by the President after consultation with the Chief Justice of India, Chief Justice of High Court and the governor of the state. The number of judges in a court is decided by dividing the average institution of main cases during the last five years by the national average, or the average rate of disposal of main cases per judge per year in that High Court, whichever is higher.
The Calcutta High Court is the oldest High Court in the country, established on 2 July 1862, whereas the Allahabad High Court is the largest, having a sanctioned strength of judges at 160.
High courts which handle a large number of cases of a particular region, have permanent benches established there. For litigants of remote regions, 'circuit benches'
are set up, which work for those days in a month when judges visit.
District / Subordinate courts
The District Courts of India are established by the State governments of India for every district or for one or more districts together taking into account the number of cases, population distribution in the district. They administer justice in India at a district level. These courts are under administrative control of the High Court of the State to which the district concerned belongs. The decisions of District court are subject to the appellate jurisdiction of the concerned High court.
The district court is presided over by one District Judge appointed by the Governor with the consultation of High Court. In addition to the district judge there may be number of Additional District Judges and Assistant District Judges depending on the workload. The Additional District Judge and the court presided have equivalent jurisdiction as the District Judge and his district court. The district judge is also called "Metropolitan session judge" when he is presiding over a district court in a city which is designated "Metropolitan area" by the state Government.
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The district court has appellate jurisdiction over all subordinate courts situated in the district on both civil and criminal matters. Subordinate courts, on the civil side are, Junior Civil Judge Court, Principal Junior Civil Judge Court, Senior Civil Judge Court. Subordinate courts, on the criminal side are, Second Class Judicial Magistrate Court, First Class Judicial Magistrate Court, Chief Judicial Magistrate Court.In addition 'Family Courts" are established to deal with matrimonial disputes alone.
The family court & Mahila Court matter deal by the Principal Judge. The Judges appointed to this post from the pool of District Judge rank. In few states like Maharashtra, Andhra Pradesh, it has separate cadre post means the judges are not appointed from the continue service but from the pool of retired judicial officer either directly or through exam.
Executive & Revenue Court
- Well after the judicial hierarchy the Executive hierarchy starts. As per the provision of Cr.P.C. it empower the Executive Magistrates Court to deal with petty offences which are even below to the compoundable nature, but the power didn't construct that they hold judicial magisterial power in any how. Section 3 of CrPC clearly bifurcated the matter to deal by both magistrate. Section 20 of CrPC empowered the State Government to appoint Executive Magistrates in every metropolitan area and in every district. It has the authority to appoint one of the Executive Magistrate as the District Magistrate and it can appoint any Executive Magistrate as the Additional District Magistrate and such magistrate has the same power as enjoyed by the District Magistrate under CrPC.
Section 21 empower state government to appoint special Executive Magistrate. Under Section 20 of Crpc, the Commissioner of Police can also be appointed as Executive Magistrate but only when the district is declared by state government as Commissionerate. Also important to note down, the DG of states holds the rank CP but can't exercise power of EM until his designation change into CP.
Revenue Court - With the purpose to deal with the land revenue matters, each state government established a Revenue Court. These courts adjudicate into matters related to-
- Land Revenue
- matters of tenancy
- boundaries of agricultural land
- succession
- transfer of land
- partition of holding
- demarcation of boundaries
- removal of encroachments, eviction of trespassers, and in some states, UP included, declaratory suits.
Village courts / Panchayat / Rural Court
village courts, Lok Adalat or Nyaya panchayat, compose a system of alternative dispute resolution.They were recognized through the 1888 Madras Village Court Act, then developed in various provinces and Indian states. The model from the Gujarat State was used from the 1970s onwards. In 1984 the Law Commission recommended to create Panchayats in rural areas with laymen. The 2008 Gram Nyayalayas Act had foreseen 5,000 mobile courts in the country for judging petty civil and criminal cases. However, the Act has not been enforced properly, with only 151 functional Gram Nyayalayas in the country against a target of 5000 such courts. The major reasons behind the non-enforcement includes financial constraints, reluctance of lawyers, police and other government officials.
Judicial Academies
A National Judicial Academy trains High Court Judges & State Judicial Officers. National Judicial Academy is located in Bhopal, India that implements the National Judicial Education Strategy. A list of judicial academies is in the table below.| Academy National / State |
| National Judicial Academy |
| West Bengal Judicial Academy |
Issues
According to the World Banks, "although India's courts are notoriously inefficient, they at least comprise a functioning independent judiciary" A functioning judiciary is the guarantor of fairness and a powerful weapon against corruption. But people's experiences fall far short of this ideal. Corruption in the judiciary goes beyond the bribing of judges. Court personnel are paid off to slow down or speed up a trial, or to make a complainant go away.Citizens are often unaware of their rights, or resigned, after so many negative experiences, to their fate before an inefficient court. Court efficiency is also crucial, as a serious backlog of cases creates opportunities for demanding unscheduled payments to fast-track a case.
Indian Judiciary Issues have been depicted in several films, one of them being a 2015, Marathi film, Court.
Pendency of cases
Indian courts have millions of pending cases. On an average about 20% of the sanctioned positions for judges are vacant, whereas the annual increase in pendency is less than 2%. If the vacancies were filled, pendencies would go down and make the justice system deliver efficiently. Traffic challans, police challans and cheque bounce cases make up nearly half of all pending cases.In 2015, it was reported that there were close to 400 vacancies for judge's post in country's 24 high courts. Arrears in the Supreme Court have mounted to around 65,000. There are some 30 million cases in various courts. Budget allocation for judiciary is a miserly 0.2 per cent of the gross domestic product. The judge-population ratio is 10.5 to one million, which should be 50 to one million.
The government has been the largest, single party litigating before the courts, and has kept adding cases to the over-burdened courts despite losing most, and then on losing, has relentlessly taken them to the next court, much of this being avoidable, according to the Law Commission The vast number of cases pending in the Supreme Court as well as the other lower courts has defeated the very purpose of the judicial system. For justice delayed, is in effect justice denied. Judiciary is no longer attracting the best legal talent because of disparity in the income of bright young lawyers and the emoluments of judicial officers. To attract persons of the right calibre to the judicial cadre, System must improve their service conditions, particularly of the trial court judges. In recent years scandals about lack of integrity have besmirched the reputation of the judiciary. The sub-ordinate judiciary works in appalling conditions. Any reform undertaken must be in its totality rather than in isolation.
On 12 January 2012, a Supreme Court bench said that people's faith in judiciary was decreasing at an alarming rate, posing a grave threat to constitutional and democratic governance of the country. It acknowledged some of the serious problems of a large number of vacancies in trial courts, unwillingness of lawyers to become judges, and the failure of the apex judiciary in filling vacant HC judges posts.
It wanted to seek answers from the government on amicus curiae's suggestion that access to justice must be made a constitutional right and consequently the executive must provide necessary infrastructure for ensuring every citizen enjoyed this right. It also wanted the Government of India to detail the work being done by the National Mission for Justice Delivery and Legal Reforms.
Undertrials outnumber convicts in the prison population of Indian jails. There have been cases where ordinary citizens have been charged for espionage while overstaying their visa or straying across the international land or maritime boundary and languishing in prison for years due to the slow redressal process.
To reduce pendency, 'Fast-track courts', 'Evening courts/Morning courts' were set up and have met with mixed success so far. 'Mobile courts' are being set up to bring 'justice at the doorsteps' of litigants of far-flung remote and backward rural areas.
However, Lok Adalats an informal, alternative mechanism has been a phenomenal success in tackling pendency, especially in pre-litigation matters, settling fresh cases before they become full-blown disputes and enter the courts.
According to a report released by Centre for Public Policy Research and British Deputy High Commission "here are a total of 16,884 commercial disputes pending in High Courts with original jurisdiction. Of these Madras High court tops with 5,865. With the number of commercial disputes growing rapidly, facilitating a seamless dispute resolution system through alternate means has become crucial."
Judicial corruption
Corruption is rampant in India's court. According to Transparency International, judicial corruption in India is attributable to factors such as "delays in the disposal of cases, shortage of judges and complex procedures, all of which are exacerbated by a preponderance of new laws". Most disturbing is the fact that corruption has reached the highest judicial forum i.e. Supreme Court of India. Some notable cases include:- In April 2017, A judicial Magistrate Debanjan Ghosh gave bail to a murder accused, and it is alleged that it is unusual unless huge money is involved.
- In December 2015, the Jail strength occupancy at Bagrakot correction home in Darjeeling District reduced to its lowest. It was later analysed that this was due to large number of undeserving acquittals and undeserving bails by then Additional Chief JM.
- In December 2009, legal activist and Supreme Court lawyer Prashant Bhushan stated in court, "out of the last 16 to 17 Chief Justices, half have been corrupt" In November 2010, former Law Minister, Shanti Bhushan echoed Prashant Bhushan's claim.
- There have been allegations that judges with doubtful integrity were elevated within the higher judiciary and campaigns held for their impeachment.
- In November 2011, a former Supreme Court Justice Ruma Pal slammed the higher judiciary for what she called the seven sins. She listed the sins as:
- #Turning a blind eye to the injudicious conduct of a colleague
- #Hypocrisy – the complete distortion of the norm of judicial independence
- #Secrecy – the fact that no aspect of judicial conduct including the appointment of judges to the High and Supreme Court is transparent
- #Plagiarism and prolixity – meaning that very often SC judges lift whole passages from earlier decisions by their predecessors and do not acknowledge this – and use long-winded, verbose language
- #Self Arrogance – wherein the higher judiciary has claimed crass superiority and independence to mask their own indiscipline and transgression of norms and procedures
- #Professional arrogance – whereby judges do not do their homework and arrive at decisions of grave importance ignoring precedent or judicial principle
- #Nepotism – wherein favours are sought and dispensed by some judges for gratification of varying manner.
- In 2011, Soumitra Sen, former judge at the Calcutta High Court became the first judge in the India to be impeached by the Rajya Sabha for misappropriation of funds.
- Former Chief Justice of Odisha Justice Quddusi was also involved in huge corruption.
Reform
E-Courts Mission Mode Project
The E-courts project was established in the year 2005. According to the project, all the courts including taluk courts will get computerised. As per the project in 2008, all the District courts were initialised under the project. In 2010, all the District court were computerised. The entry of back log case has started. The IT department had one system officer and two system assistants in each court. They initiated the services in the Supreme Court in June 2011. The case lists and the judgements of most district courts were available in http://lobis.nic.in. in http://judis.nic.in is used to connect all High Courts and Supreme Court judgements and cause list. These websites are updated daily by a technical team. Now by and large all the District and Taluka Courts in the country are computerised. Cause list of each of the Court can be seen on https://districts.ecourts.gov.in. Similarly on this site you can check your cases status, your can see judgments and orders. For searching cases status, judgments, or cause lists various search options are given. Besides this http://njdg.ecourts.gov.in is National Judicial Data Grid which gives pendency figures and other relevant information in statistical form.The project also includes producing witnesses through video conferencing. Filing cases, proceedings, and all other details will be in computers. Each district court contains 1 system officer and 2 system assistants. This technical manpower is involved in training the staff, updating web sites.