BLS LLB - HISTORY OF COURTS - CHAPTER NO 7

;’          Indian constitution has provided a unified judicial system. It provides for one single integrated judiciary having jurisdiction and providing remedies in all cases arising under the constitution law the civil or criminal. At the top is the Supreme Court then High Court then District Court. The subordinate judiciary is organized under the statue of the states. However certain provisions had been incorporated in the constitution with a view to ensuring the independence of judges. The conference of the judges of the FD (            ) and the Chief Justice of the High Court held in March 1948 recommended for provision in the constitution for ensuring the independence of the subordinate judiciary.

            Each state has been divided into several districts and in each district there is a district court and under each district several lover court function District Court is the principal. Civil Court of original jurisdiction. On criminal side the District functions as the session’s court also and in addition to it there are several magistrate trail court.

Supreme Court of India –

            The Supreme Court of India occupies the highest position in the judiciary hierarchy. It is the final interpreter of the constitution of India and also of the general law of India. It is regarded as the guardian of the fundamental rights of the people. It is the highest court of appeal in all civil and criminal matters. It consist of a chief justice and until parliament by law prescribe a larger number, of not more than 7 other judges. Parliament has thus power to increase this number by law. At present Supreme Court consist of the Chief Justice and 25 other Judges. The number of Judges has been increased from 25 to 30 by the Supreme Court (Amendment) Act 2008, the president or some person appointed in that behalf by him, an oath or affirmation according to the form set as for the purpose in the third schedule.

Salaries & Allowances –

            Article 125 makes it clear that the Judges of Supreme Court shall be paid such salaries as are specified in the 2^nd schedule. Every judge as Article 125(2) provides, shall be entitled to such privileges and allowances and such rights in respect of leave of absence and pension as may from time to time determined by or under law made by parliament and until so determined such privileges allowances and rights as are specified in the second schedule.

Salary and condition of service Act 2009 –         

Salary has been raised 33,000 /- to 1, 00,000 /-.

Chief Justice, Judges of Supreme Court –

30,000 /- to 90,000 /-

Tenure –

            Up till the age of 65. Article 124(4) make it clear that a Judge of Supreme Court cannot be removed from his office except by an order of the president passed after an order of the president passed after an address by each house of parliament. Supported by a majority of the total membership of that house and by a majority of not less than 2 – 3^rd of the members of that house present and voting has been presented to the president. In the same session for such removal on the ground of proved misbehavior or incapacity.

Appointment of Chief Justice of India –

            When the office of Chief Justice vacant or when the Chief Justice by of absence or otherwise, unable to perform the duties of his office, the duties of the office shall be performed by such one of the other Judges of the Court as presided may appoint the purpose.

Appointment of Ad-hoc Judge –

            It at any time there should not be a quorum of the Judges of the Supreme Court available to hold or continue any session of the Court. The Chief Justice of India may with the previous consent of the president and after consultation with the Chief Justice of the High Court concerned request in writing the attendance at the sitting of the Court as an Ad-hoc Judges. For such period as may be necessary of a judge of a High Court duly qualified for appointment as a judge of Supreme Court to designate by the Chief Justice.

Prohibition of practice after retirement –

            Article 124(7) say that no person who has held office as a judge of Supreme Court can plead or act in any court or before any authority with in the territory of India. However as it clear may with the previous consent of the president request any person who was held the office of a judge of High Court and is duly qualified for appointment of a judge of Supreme Court to sit and act as judge of the Supreme Court.

Seat of Supreme Court Article 130 –

            Supreme Court sit in Delhi or Such other place or places. The Chief Justice of India may from time to time, with the approach of the president from time, appoint.

Jurisdiction and power of the Supreme Court –

1)    Court of record Article 129(CoR)

2)    Original Jurisdiction

3)    Appellate Jurisdiction

COURT OF RECORD –

            Supreme Court is a Court of Record and has all the powers of such a court including the power to punish for contempt of itself. The Court of Record may be taken to mean a court which records are admitted in evidence and cannot be questioned when they are produced before the court. Once the Supreme Court is declared as Court of Record. It follows there from that it has power to punish for its contempt.

            The power of Supreme Court to punish for contempt itself is an extraordinary power and therefore, it should not be exercised very frequently and thus, it should be exercised courteously, wisely and with circumspection. It should be exercised when there is a real prejudice which can be regarded as a substantial interference with the due course of justice. It should be exercised. If the public interest, so demands. Aurundhati Roy v/s Vinay Chandra Mishra Case.

ORIGINAL JURISDICTION –

a)    Concurrent Original Jurisdiction

b)   Exclusive Original Jurisdiction

Concurrent Original Jurisdiction –

            Article 32 empowers the Supreme Court to issue Directions or Orders or Writs. Whichever may be appropriate for the enforcement of any of the Fundamental Rights. A similar jurisdiction conferred on the High Court also. According to Article 226, every High Court shall have power throughout the territory in relation to which it exercise its jurisdiction to issue to any person or authority. The writ jurisdiction exercised by the Supreme Court and High Court for enforcement of any of the fundamental right Article 32 of Supreme Court and Article 226 of High Court.

Exclusive Original Jurisdiction –

            Article 71 –

            The Supreme Court has exclusive original jurisdiction to decide all doubts and disputes arising out of or in connection with the election of a president or vice president and its decision will be final.

            Article 131 –

            The Supreme Court shall subject to the exclusion of any other court have the original jurisdiction in any dispute between the government of India and any state or states one side and one or more other states on the other between two or more states. If the disputes involve any question on which the existence or extent of a local legal right depends.

            The provisions of Article 132 exclude the idea of any corporation, firm or private citizen figuring disputants either above or even along with a state or with government of India is a piety to the dispute.

APPELLATE JURISDICTION –

1.    Appeal in constitution matters,

2.    Civil matters,

3.    Criminal matters,

4.    Special leave to appeal,

5.    Jurisdiction of Federal Court to be exercised by the Supreme Court.

Appeal in Constitution Matters –

            According to Article 132 an appeal shall lie to the Supreme Court from any judgment of High Court in the territory of India. If the High Court certifies under Article 134 A, that the case involves a substantial question of law as to the interpretation of the constitution, where such a certificate is given any party in case may appeal to the Supreme Court on the ground that any such questions as aforesaid has been wrongly decided.

            Article 132, thus deals with the appeal against the decree or final order of the High Court, involving a substantial question of law as to the interpretation of the constitution. The appeal under the Article may be filed in the Supreme Court against the judgment.

            The High Court if the following condition has been fulfilled. Judgment, Decree or Final order of High Court, certificate of the High Court that the case involves a substantial question of law as to the interpret of the constitution.

Appeals in Civil Matter –           

            According to the Article 13 an appeal shall lie to the Supreme Court from any judgment decree or Final order in a Civil Court proceeding of a High Court in the territory of India. If the High Court certifies under Article 134A.

            That the case involves a substantial question of law of general importance. That in the opinion of the High Court the said question needs to be decided by the Supreme Court.

            Any party appealing to the Supreme Court under this Article may urge as one of the grounds in such appeal that a substantial question of law as to the interpretation of the constitution has been wrongly decide. Article 133 has made it clear that no appeal shall unless parliament by the otherwise provides, lie to the Supreme Court from the judgment of one judge of a High Court.

            The appeal under this Article may be filed in Supreme Court same as above.

Appeal in Criminal Matters –

            Article 134 – an appeal against any judgment final order or sentence passed by High Court in Criminal proceedings may be filed in the Supreme Court in the following conditions.

1)    Without certificate of the High Court –

A)   An appeal may be field against the judgment by the High Court in any Criminal proceeding in the High Court.  It has an appeal revised an order of acquittal of an accused person and sentences to him to death.

B)   Has withdrawn for trail 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.

With the certificate of the High Court –

            An appeal against any judgment final order or sentence passed by the High Court in Criminal proceeding may be filed in the Supreme Court, if the High Court certifies that the case is a fit one for appeal to the Supreme Court. The High Court may, if it deem fit so to do or on its own motion and shall if an oral application is made by or on behalf of the party aggrieved immediately after the passing or making of such judgment determine the question whether such certificate may be given in respect of the case. The appeal under the Clause (A-134) (I)(C) shall lie subject to such provision as may be made in that behalf under Act 145(I) and to such conditions as the High Court may establish on require. Appeal under the clause can be filed only when the High Court grants a certificate that the case is a fit one for appeal to the Supreme Court. The power if the High Court should exercise this discretion sparingly and with care and on judicial principles. It should not be exercised in such a manner as to convert the Supreme Court an ordinary court of Criminal appeal. The High Court should grant the certificate only when the case involves a substantial question of law or principle. The certificate should not be granted, if the question of principle has been settled by the Supreme Court the applicant of the principle to the facts of a particular case cannot make the question a fit one for appeal under this clause and on his ground the High Court should not certify that the case is a fit one for appeal to the Supreme Court under this clause.

Special leave to appeal 136 –

            Notwithstanding the provision for regular appeals in Article 132 to 134 the Supreme Court may in its discretion grant special leave to appeal from any judgment decree, determination, and sentence order in any cause or matter passed or made by any court or tribunal in the territory of India. Save Military Tribunals. The Supreme Court thus can grant special leave to appeal from judgment, decree etc., of any court or tribunal, however, it cannot grant special leave to appeal from judgment passes by any court consisted by or under any law relating to the Armed Forces.

            This power of the Supreme Court to its discretionary power Article 136 does not confer a right of appeal upon the party it vests discreet in the Supreme Court to grant spate leave to appeal but, the appeal under the Clause (A134)(i)© shall lie subject to such provision as may be made in that behalf under Article 145(1) and to such conditions as the High Court may establish or require, appeal under the clause can be filed only when the High Court grants a certificate that the case is a fit one for appeal to the Supreme Court. The power of the High Court to grant such certificate is a discretionary power however, it is required to be exercised by the High Court judiciously. The High Court should exercise this discretion sparingly and with care and on judicial principles. It should not be exercised in such a manner as to convert the Supreme Court an ordinary court of criminal appeal. The High Court should grant the certificate only when the case involves a substantial question of law or principle. The certificate should not be granted if the question involved in the case is of fact only. If the question of principle has been settled by the Supreme Court the application of the principle to the facts of a particular case cannot make the question a fit one for appeal under this clause.  It is expected that this discretion would be exercised reasonably and in exceptional cases only. It is to be exercised sparingly and with caution only in special and extra ordinary situations.

            Special leave to appeal may be granted the Supreme Court even where the High Court has refused to grant the certificate under Article 132 and 134.

            Under Article 132, 133, 134 the appeal can be filed in the Supreme Court only against such order of High Court which is final, but the appeal under Article 136 is possible against any order whether it is final or not the Supreme Court may grant special leave to appeal from interlocutory order also.

            It is to be noted that in case of appeal to the Supreme Court under Article 136 Supreme Court does not allow the party to raise new plea which has not been raised before the court below and raised for the first time in appeal before the Supreme Court.

            The leave granted under Article 136 may be revoked in appropriate cases . the leave obtained by misrepresentation or suppression of material facts may be revoked by the Supreme Court.

Advisory Jurisdiction (Article 143) –

            According to Article 143 if at any time it appears to the president that a question of law or fact has arisen or is likely to arise, this is of such a nature and of such public importance. That it is expedient to obtain the opinion of Supreme Court upon it, he may refer the question to that court of consideration and the court may after such hearing as it thinks fir report to the president. Its opinion, thereon the word ‘May’ indicate that Supreme Court is not bound to express its opinion the question referred to it. It is incapable of being answered it is hypothetical or speculative. It is too vague or of a political nature. However it is to be noted that if the president refer to the Supreme Court for its opinion any dispute arising out of any treaty agreement instrument, covenant engagement and or other similar instruction which have been entered into or executed before the commencement the Supreme Court is bound to report to the president its opinion thereon.

            Article 143 thus empowers the president to obtain the advisory opinion of the Supreme Court upon any question of public importance whether of law or of fact. There is no such provision in the constitution of S.S.A or in the constitution of Australia. The Supreme Court of U.S.A and the High Court of Australia have consistently refused to render advisory opinion. However in Canada the Governor General Council is empowered to refer important questions of law relating to certain matter to the Supreme Court its opinion.

Power of the Supreme Court to Review its judgment (Article 137) –

            According to Article 137 subject to the provisions made by parliament or any rules made under Article 145, the Supreme Court shall have the power to review any judgment pronounced or made by it. The Supreme Court has power to review its judgment subject to the laws made by the parliament or rules made by the Supreme Court. Under its rules making power under Article 145 – subject to the provision of any law made by parliament, the Supreme Court may from time to time with the approval of the president make rules for regulating generally the practice and procedure of the court including.

a)    Rules as to the persons practicing before the Court.

b)    Rules as to the procedure for hearing appeals and other matters pertaining to appeal including the time within which appear to the court are to be entrance.

c)    Rules as to the proceedings in the court for the endorsement of any of the rights conferred by Part III. Rules as to the proceedings in the court under Article 139 – A

d)    Rules as to the entertainment of appeals under Sub Clause (c) of clause (1) of Article 134.

e)    Rules as to the condition subject to which any judgment pronounced or order made by the court may be reviewed and the procedure for such review including the time within which application to the court for such review are to be entered.

f)     Rules as to the costs of and incidents to any proceedings in the court and as the fees to be charged in respect of praised there to.

g)    Rules as to granting of bail.

h)   Rule as to stay of proceedings

i)     Rule providing summary determination

Subject to the provision of clause (2). Rules made under this Article may fix the minimum number of judges who are to sit for any purpose and may provide for the powers of single judge and division courts.

The minimum number of judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this constitution or for the purpose of hearing any reference under Article 143 shall be 5

No judgment shall be delivered ny the Supreme Court save in open court and no report shall be made under Article 143 save in accordance with an opinion also delivered in open court.

No judgment and no such opinion shall be delivered by the Supreme Court save with the concurrence of a majority of the judges present at the hearing of the save but nothing in this clause shall be deemed to present a judge who does not concur from delivering a dissenting judgment of opinion.

This power is subject to laws made by parliament. Rule to make cannot override the provision of the constitution. Enlargement of the jurisdiction of the Supreme Court Article 138. Conferment of powers on the Supreme Court to issue certain writs (Article 139).

Ancillary power of Supreme Court Article 140 –

            Parliament may bylaw make provisions for conferring upon the Supreme Court such supplemental powers not inconsistent with any of the provisions of the constitution of India as may appear to be necessary or desirable for the purpose of enabling the court more effectively.

Law declared by the Supreme Court to be binding on all Courts (Article 149) –

            Article 141 makes it clear that the law declared by the Supreme Court shall be binding on all courts with in the territory of India. However the Supreme Court itself is not bound by its earlier decision and may depart from its earlier decision, if it is convinced of its error and its beneficial effect.

            Enforcement of decree and orders of the Supreme Court and orders as to discovery etc. Article 142. Civil and Judicial authority to act in aid of the Supreme Court o Article 144.

HIGH COURT –

Constitution of High Court. Article 216 –

            According to Article 216, every High Court shall consist of Chief Justice, such other judges as the president may from time to time, deem it necessary to appoint. In the case of Supreme Court. Advocates on Record Association V/s Union of India. The Supreme Court held that fixation of judge strength in a High Court is justifiable.

Appointment of judges Article 217(1) –

            Judges appointed by president after consultation with Chief Justice.

            Qualification of Judges - Article 217(2)

            Tenure resignation and removal of Judges – Article 217(1), 217(3)

            Oath or affirmation Article 219.

            Appointment of acting Chief Justice

            Appointment of additional acting Judges

            Salary Chief Justice – 90,000 per month.

            Judges – 80,000 per month.

            Transfer of Judges Article 222.

Jurisdiction powers of High Court –

Court of Record Article 215 –

            Every High Court shall be a Court of Record and shall have all the powers to punish for contempt of itself. The power of High Court is similar to that the power of Supreme Court Article 219.

            The power of High Court to punish for contempt itself is an extraordinary power. The contempt of Court Act 1971enacted by parliament defines the limits and powers of the court to punish for contempt of courts. It also regulate their procedure. The Act provides that even a judge can be held liable for the contempt of the court.

Power of Superintendence, Article 227 –

            The power of superintendence over the court subordinate to it provides that every High Court shall have superintendence over all courts and tribunals. Throughout the territories in relation to which is exercise jurisdiction. It may call for returns from such courts, make and issue general rules and prescribe forms in which books, entries and accounts shall be kept by the officers of any such court. The High Court may settle tables of fees to be allowed to the sheriff and all clerk and officers of such courts and to attorneys, advocates and pleaders practice therein.

            Power to withdraw certain cases from subordinate courts Article 228.

General Jurisdiction – Article 225 –

            Subject to the provision of the constitution and to the provision of any law of the appropriate legislature made by virtue of powers conferred on the legislature by this constitution the jurisdiction of and law administered in any existing High Court and the respective powers of the judge thereof in relation to the administration of justice in the court including any power to make rules of court and to regulate the setting of the courts shall be the same as immediately before the commencement of this constitution.

            Appeal in Civil cases under Part VII, VIII.

            Appeal in Criminal cases under Part XXIX, XXX

Writ Jurisdiction. Article 226 –

            High Court writs for the enforcement of the Fundamental Rights as well as for any other purpose. Article 226 provides that notwithstanding anything in Article 32 every High Court shall have the power throughout the territories in relation to which it exercise jurisdiction, top issue to any person or authority including in appropriate cases any government within those territories directions order or writs including writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo-Warranto and Certiorari or any of them for the endorsement of any of the Fundamental Rights guaranteed by Part III of the constitution and for any other purpose.

1)    HABEAS CORPUS –

Bringing the body is issued as an order calling upon the person who has detained another person to produce detain before the court to examine the legality of his detention. If detainee is produced before the court and the court finds the detention illegal, it will order that the person, so detained should be immediately released. The object of this writ is to secure the release of the person detained illegally. Its object is not to punish the person who has detained another person illegally but to secure, release of the person who has been illegally detained whether in prison or private custody. However, in certain exceptional cases it may direct the detaining person or authority to compensation to the person illegally detained.

It provides quick remedy to the person detained illegally. Ordinarily the person whose Fundamental Right has been infringed is entitled to apply for relief under Article 32 and whose Fundamental Right or other legal right has been infringed may apply for relief under Article 226, however in the case of Habeas Corpus and Quo warranto a person other than the said person may also apply for relief. Thus the right which can be enforced is ordinarily required to be the right of the petitioner himself except in the case of Habeas Corpus or Quo Warranto. The application for the writ of Habeas Corpus thus may be made by the detainee himself or if he is not in a position to do so by any other person on his behalf. The application on the writ of Habeas Corpus may be made even by a stranger or a Social Worker.

Condition for the issue –

            It will be issued if the detention is prima facies illegal. The detention would be illegal if there is no law supporting the detention or if the detention is under a valid law but the procedure established by the law has not been followed. i.e. the detention is in violation of the procedure established by the law. The detention in contravention with the provision of Article 22 is treated as illegal detention and in such condition Habeas Corpus will be maintainable.

2)    MANDAMUS –

Is in form a command issued by the superior Court (Scortic) to the government, inferior court, tribunal publish authority corporation or any other person having public duty to perform asking. Such government, inferior court tribunal, public authority corporation or person to perform the public duty or to refrain from doing illegal act. “Mandamus is command issued to direct any person, corporation, inferior court or government requiring him or those to do same particular thing therein specified which appertains to his or their office and is in the nature of public duty”

For the issue of this writ, the following conditions are required to be full filled.

Public Duty –

The person or authority against whom this writ is sought to be issued must have public duties to perform and there must have been failure ion his part in the performance of his duties.

Duty to be mandatory –

The authority or the person against whom the writ is sought to be issued must have same public duties to perform, the performance of the duties by him must be imperative or mandatory and not discretionary and there must be failure or person is bound to perform the duty, the duty will be taken as a mandatory duty.

Petitioner’s legal right to compel the performance of the duty. Demand of the performance and its refusal –

It is necessary that the petitioner has called upon the authority concerned to perform its public duty and the authority concerned has refused to do so.

3)    CERTIORARI –

Which is based by the Superior Court to Quasi – Judicial functions to remove the proceedings from such court. Tribunal or body for examining the legality of the proceedings. If the order passed by the inferior court or tribunal or body exercising judicial or quasi-judicial functions is found to be illegal the superior court may demolished. Whenever anybody of persons having legal authority to determine questions affecting rights of subject having the duty to ad judicially and acts in excess of their legal authority Certiorari may lie to quash a decision that goes beyond jurisdiction.

The object of this writ is to keep the inferior court or tribunal or bodies exercising judicial or Quasi-judicial functions within the limit of the jurisdiction assigned to them by law and to prevent them from acting in excess of their jurisdiction.

            Condition –

Any constitutional statutory and non-statutory body authority or person who exercise judicial, quasi-judicial or administrative function affecting right of any person issued in case of violation of the principle of natural justice.

            The writ lies in cases where the inferior court or tribunal or the body exercise judicial or quasi-judicial function acts without jurisdiction, where there is error of law appeared on the face of record, certiorari may be issued.

4)    PROHIBITION –

Which is issued by a Superior Court to an inferior Court or Tribunal or body exercising judicial functions preventing such inferior court or Tribunal or body from usurping (taking) jurisdiction which is not legally vested there in or form acting under the unconstitutional law? Prohibition is a writ “issuing out of the High Court of justice and directed to an inferior court which forbids such court to continue proceedings therein excess of its jurisdiction or in contravention of the law of the land. Object is to restrain the inferior court or tribunal or bodies exercising judicial or quasi-judicial function from execute their jurisdiction. It is an order directed to an inferior court which forbids the court to continue proceedings therein excess of its jurisdiction or in contravention of the law of the land.

5)    QUO-WARRANTO –

The literal meaning of Quo-warranto is by what authority by this writ a person, who occupies or usurps an independent, substantive office is asked to show by what authority he claims it. According to Halsbury – information in the nature if Quo-warranto took the place of the obsolete writ of Quo-warranto which lay against a person who claimed or usurped an office franchise or liberty to enquire by what authority he supported his claim, in writs that the right to the office or franchise might be determined. The procedure of Quo-warranto which lay against a person who claimed or usurped an office franchise or liberty to enquire by what authority he supported his claim in order that the right to the office or franchise might be determined.

            Condition –

The office in question must be public office of substantive character. It must be held by a person without legal authority.

Quo-warranto never issued as a matter of course. It is a discretionary remedy. Consequently the court may grant or refuse according to the facts and circumstances of each case. Thus the court may refuse to issue quo-warranto where it would be vexatious or futile. It may be refused if the petitioner has alternative remedy under the statue. However the existence of an alternative remedy is not absolute.

SUBBORDINATE COURTS –

Appointment of District Judges –

            ACCORDING TO Article 233(1) appointment, posting and promotion of District Judges in any state shall be made by the governor of the state in consultation with the High Court exercising jurisdiction in relation to such state. The consultation with the High Court is mandatory and therefore the appointment posting or promotion of the District Judges without such consultation would be invalid. Consultation must be effective and complete and it should not ne an empty formality. To be an effective consultation there must be interchange of view between the High Court and Governor. The object is the High Court is expected to know better than the governor in respect of the suitability or otherwise a person belonging either to the judicial service or to the bar to be appointed as District Judge.

            Article 233(2) a person not already in the service of the union or of the state shall only be eligible to be appointed a District Judge if he has been for not less than 7 years an advocate or a pleader and is recommended by the High Court for appointment.

            The expression District Judge included judge of a City Civil Court, Additional District Judge, join District Judge, Assistant District Judge Chief Justice of small cause, Chief Presidency Magistrate, Additional Chief Presidency magistrate session judge. Additional SJ and Assistant session.

            Article 235 –             The control over District Courts and Court subordinate there to including the posting and promotion of and the grant of leave to persons belonging to the judicial service of a state and holding any post of District Judge shall be vested in the High Court.

            Civil Court –             The District Court is presided over by a District Judge. The Court of the District Judge is the principal Civil Court in the district. It exercise original appellate jurisdiction in civil cases. The District Judge has power to supervise the subordinate courts exercising civil jurisdiction in his district.

            Criminal Court –     In every District there is a session court. It is presided over by session judges. The judges of session court can pass any legal substance. However, if he has passed a death sentence it must be confirmed by High Court before its execution. The additional session Judges and Magistrate also decide the Criminal case.