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.

BLS LLB - HISTORY OF COURTS - CHAPTER NO 6

SEPERATION OF POWER :

RULE OF LAW –

            The rule of law plays an important role in the administration of the country. It provides protection to the people against the arbitrary action of the administrative authorities.

            The expression “Rule of Law” has been derived from the French phrase “Las principle de legality” a government based on the principles of law. In simple words the term rule of law indicates the states of affairs in a country where, Rule of law also known as monocracy is the legal principle that law should govern a nation and not individual government official. It primarily refers to the influence and authority of law with in society particularly as a constraint upon behavior including behavior of government officials. The phrase can be traced back to the 16^th century and it was popularized in the 19^th century by the British jurist A.V Dicey. Rule of law implies that every citizen is subject to the law including law makers themselves. It stands in contrast to the idea that the ruler is above the law. The constitution of India declares that we are a democratic, secular and socialist Republic. The rule of law governs our country. Equality before law and equal protection of law are the most fundamental right conferred on its citizen. We have a lengthy constitution Independence of judiciary and highly qualified bureau crates are the need of the hour.

            Rule of law contains 3 principles –

1)    Supremacy of law

2)    Equality before law

3)    Pre-dominance of legal spirit.

The doctrine of Rule of Law adopted in Indian constitution. The ideal of the constitution justice, liberty and equality are embodied in the preamble.

The constitution of India made the supremacy of Law of the country and other laws are required to be in conformity with the constitution. Any law which of the constitution is declared valid.

In India the meaning of Rule of Law has been much expanded. It is regarded as a part of the basic structure of the constitution and there for it cannot be abrogated or destroyed even by parliament it is also regarded as a part of natural justice.

Rule of law has been originated by sir Edward Coke. He expressed the view that the king must be under God and law. It was originated with the object to exclude the arbitrary authority of the government and to protect the individuals from unlawful action of government. Later in this concept was developed and established by A.V Dicey. According to Dicey Rule of Law has 3 meaning.

1)    Rule of law is that no man is punishable or can lawfully be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the law. Thus Rule of Law, according to Dicey, means the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power and excludes the existence of arbitrariness of prerogative or even of the wide discretionary authority on the part of the government. It implies that a man may be punished for a breach of law but he cannot be punished for anything else. No man can be punished except for a breach of Law. An alleged offence is required to be proved before the ordinary courts in accordance with the ordinary procedure.

2)    No man is above the law is that no man is above law. Every man whatever be his rank or condition is subject to the ordinary tribunals. Thus rule of law in this sense, means equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law court. Rule of Law, thus, excludes the idea of any exemption to officials or other from the duty or obedience to the law which governs other citizens or from the jurisdiction or the ordinary tribunals.

3)    Rule of law is that the general principles of the constitution are the result of judicial decisions determining the rights of private persons in particular cases brought before the court.

The view of Dicey as to meaning of the Rule of Law has been the subject of much criticism. The whole criticism may be summed up as follows:

Dicey has opposed the system of providing the discretionary power to the administration. In his opinion providing the discretionary power means creating the room for arbitress which may create a serious threat to individual freedoms.

Now a day it has been clear that providing the discretion to the administration is inevitable. The present trend is the establishment of welfare state which performs numerous function including economic and social function. The function of the state is not confined to maintenance of army, maintenance of law and order and collection of taxes. Now days it carries on commerce and business.

Dicey has failed to distinguish discretionary power from the arbitrary powers. Arbitrary power may be taken as against the concept of rule of law but the discretionary power with proper guidelines is not against the concept of rule of law. In modern times in all countries including England, America and India the discretionary powers are conferred on the government it providing the discretionary power are conferred in the government, it providing the discretionary power to the administration or government is taken against the concept of rule of law, the rule of law is not in existence in any country including England.

According to Dicey, the rule of law required that every person should be subject to the country. Every person, whether rich or poor, irrespective of state or rank must ne subject to the same body of law and same court of the country. Dicey has claimed that there is no separate law and separate court for the trial of government servant in England.

According to Dicey the rule of law require equal subjection of all persons to the ordinary law of the country and absence of special privilages for any person including the administrative authority. In the opinion of Dicey the rule of law excludes the idea of any exemption of officials or other from the duty of obedience to the law which govern other citizens or from the jurisdiction of the ordinary courts. This proposition of Dicey does not appear to be correct even in England. Several persons enjoy same privileges and immunities.

Third meaning given to the rule of law by Dicey that the constitution is the result of judicial decisions determining the right of private persons in particular cases brought before the court is based on the peculiar charter of the constitution of Britain. Constitution of Britain is unwritten and contains the principles involved through judicial decision. The meaning of rule of law does not hold good in India, USA etc.

The definition of rule of law by Dicey he must be praised for drawing the attention of the scholars and authorities towards the need of controlling the discretionary powers of the administration. He developed a philosophy to control the government and its officers and to keep them within their powers. The rule of law established by him required that every action of the administration must be backed by law and must have been in accordance with law. The rule of Dicey in the development of the concept of fair justice cannot be denied.

INDIA:

BEFORE INDEPENDENCE –

            During British period especially during the company government in India the rule of law was given lesser importance. The company was interested in the expansion of its trade and territorial possession and it was in favor of protecting its interest. Even at the cost of justice. It gave lesser importance to the judicial Independence, Fair justice and rule of law. The voice of the judicial independence and rule of law was suppressed without least hesitation.

            In 1694, the company directed the member of the council to serve succession as the judge advocate and ultimately the court of admiralty in Madras was replaced by the governor and council.

            In Bombay, Nicolle’s attempted to establish rule of law and judicial independence but his voice therefore was treated as insubordinate and insolvent behavior and he was dismissed from his office. The court of judicature attached the lands of Robert Fisher. The Bombay council directed the judge of the judicature Nicolle’s to remove the attachment but he denied to follow the direction on the ground that it was against the oath taken by him. Then after he suspended for his quarrel with the Bombay council and the quarrel was the result of his step to establish judicial independence and rule of law. Then after Dr. John the judge Advocate of the admiralty court of Bombay established under the charter of 1683. At that time child was the Governor of Bombay. He had no respect for the judicial independence and rule of law. A conflict between Dr. John and the Bombay council arose under the issue whether or not the Bombay council was empowered to hear appeal from the admiralty court. Dr. John was of the firm view that the Bombay council had no such power under the charter of 1683. The voice of Dr. John for judicial independence and rule of law was taken as insubordinate and insolent behavior and he was dismissed in 1687.

            In 1726, the mayor’s courts were established in each of the presidency towns under the charter of 1726. The appointment of the judges was not in the hands of the executive. However, the Alderman could be dismissed by the governor and council. With the limited power the mayor’s court started their career with a spirit of judicial independence and rule of law which resulted in a conflict between the mayor’s courts and the governor and council.

            The Governor and council always interfered with judicial function of the mayor’s courts by issuing direction to them to proceed in a particular case in a particular manner. When the mayors courts took their direction as the isolation of their judicial powers and function and void them, the governor and council were annoyed and made every attempt to lower down the judiciary in the public eyes and to punish its judges. The result of the conflict was that a new charter called 1753 was issued. By charter of 1753 the power of appointment of judges of the mayors courts was rested in the governor and council and again the judiciary was made subservient to the executive.

            Attempt of the chief justice of the Supreme Court of Calcutta established under the charter of 1774. Mr. Impey to established rule of law in India was also frustrated by the governor general and council and the companies authorities.

            During the British crown, rule in India certain attempts were made for the establishment and maintenance of the rule of law and sound administration. The Indian High Courts Act was passed in 1861, with the object to authorize the British crown for the establishment of the High Courts ion crown for the establishment of the High Courts in the Presidency Towns. The High Court was given wide jurisdiction. The Law commissions were appointed for the purpose of law reforms. The law commissions played important role in the modernization of the Indian Laws. They made several inquiries and submitted several reports and proposed drafts of several laws.

            Thus during the British Crowns rule the position as to rule of law improved much as compared to the position. Thereof during the East India Company’s rule in India but even during the crown’s rule in India the position on to the rule of law was not satisfactory. The Rule of Law was not given as much importance as it ought to be given.

AFTER INDEPENDENCE –

            In India the meaning of rule of law has been much expanded. It is regarded as a part of the basic structure of the constitution and therefore, it cannot be abrogated or destroyed even by parliament. It is also regarded as a part of natural justice. The concept rule of law prevails; it is the law that rules even through the instrumentality of man. Arbitrary action is complete anti-thesis of the of law. Every organs of the state under the constitution of India ir regulated and controlled by the rule of law. Absence of arbitrary power has been held to be the first e3ssential of rule of law. The rule of law requires that the discretion conferred upon executive authorities must be contained within clearly define limits. Free legal aid for poor and speedytrial in criminal cases has been held to be necessary adjuncts to the rule of law.

Now a day’s public interest litigation is considered as one of the necessary corollaries of rule of law. Various provisions have been incorporated in the constitution of India for the establishment and maintenance of rule of law in India.

The preamble of the constitution of India seeks to secure, economic and political justice equality of status and opportunity and Definity, Fraternity and Dignity of the individual. To attain these objectives various provison have been incorporated in the Indian constitution. Part III of the constitution of Infia guarantees the fundamental rights.

Article 13(1) of the constitution makes it clear that all laws in force in the territory of India immediately before the commencement of the constitution, in so far as they are inconsistent with the provision of Part III dealing with the fundamental rights, shall to the extent of such inconsistency be void.

Article 14 of the constitution of India provides for equality before law or the equal protection of the laws. According to Article 14, the state shall not deny to any person   equality before   the law or equal protection of the laws. According to Article 14, the state shall not deny to any person equality before the law or equal protection of the laws within the territory of India.

Article 20(1) provides that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charges as an offence except for violation of a law in force at the time of the commission of the act charged as an

INDEPENDENCE OF JUDICIARY –

            Independent judiciary is necessary for maintaining rule of law and fair judicial administration in the country. Independent judiciary plays an important role in controlling the arbitrary act of the administration. If the arbitrary act of the administration causes injury to any person, it provides relief to them. Often independent judiciary is made guardian of the constitution and enforce the rule of law. Every person whether rich or poor is considered equal before law, and any person who violates law is punished by the court. For this purpose of the judiciary is required to be independent because if it is not independent and is in the control of the executive violates the law. Besides it is the rule of fair justice the justice and only justice be done, but it should appear to the people that justice has been done. If the dispute are decided by the independent judiciary, people are satisfied that justice has been done with them and consequently no dissatisfaction would prevail among the people.

For the establishment of independence judiciary appointments and removal of the judges should not be in the hands of the executive and if the power of appointment and removal thereof is vested in any executive authority there must be due safeguard so that if may not be misused so as to affect the fairness. For maintaining the judicial independence tole of executive should be passive and formal.

BEFORE INDEPENDENCE –

            During British period specially during the East India Company rule in India. The judiciary was subservient to the executive. The company gave lesser importance to the judicial independence. Fair justice and rule of law, it was interested in the expansion of its trade and territorial was under the control of the executive. The agent GIC of a factory of East India Company had both executive and judicial powers. The company established its First factory at Surat in 1612 and 1615 Englishman were allowed by the Mughal Emperor to live out of their own customs. Traditions and law and the dispute among the Englishmen in these were to be decided by the president of the factory. Thus the president and council of the factory. Thus the president and the council of the factory the executive, were conferred on the judicial power also after Indian Independence.

            Even under the existing constitution of India, the doctrine of separate of powers has not been followed strictly. The president of India the real executive power has been vested in the council of ministers with the Prime Miniter at the head. The President is to exercise his power and discharge his function with the aid and advice of the council of ministers with the Prime Minister at the head and usually the advice is binding on him. The president is a part of parliament and also of the central executive. The President can promulgate ordinance during recess of parliament. The house of people can be dissolved by the president. The president may address either House of Parliament or both houses assembled together. A bill becomes an act only when the president give his as seal to it. Certain bill cannot be introduced in Parliament, unless recommendation of the President has been received.

            Eg.-

Money bill & amendment the formation of new states or alter rule of areas & boundaries. Article 274 prior reconciliation of President is required.

Article 117(3) a bill which if enacted brought into operate would involve expenditure from the consolidate fund.

JUDICAIL ACTIVISM AND SEPERATION OF POWER THEORY –

            The Supreme Court has been made the guardian and protector of the constitution. The constitution has assigns it the role to ensure rule of law including the supremacy of law in the country. In a case the Supreme Court has held that under Article 32, the Supreme Court and under Article 226 the High Court may issue direct to the executive and the legislature to discharge their obligatory duties.

            Judicial activism may taken to mean the movement of the judiciary to probe in to the inner functioning of the other organs of the government ( Executive and Lagislature). The judicial activism is the result of inactiveness on the part of the legislature to make law and of the executive to implement the law nut both the organs have failed to discharge their function satisfactorily. In such circumstances it is not the power but duty of the court to uphold the constitution and compel the other organs of the government to discharge their function properly. The Supreme Court being the guardian of the constitution cannot remain a silent spectator it can direct the legislature and executive t discharge the function assigned to them by the constitution.

            The main object is to maintain the rule of law in the country. The rule of law requires each organs of the government to perform the functions assigned to it by the constitutions. If the legislature does not make the required law and the executive does not execute the law does not arrest the law breaker and does not collect the evidence against them, there will be complete death of the rule of law which is necessary for the very existence of the society. The court cannot be and should not be a party to it as is the guardian of the constitution protector of the rule of law in the country.

            Article 13,32.141 and 142 are considerable important in judicial activity. Article 32 makes the Supreme Court as the protector and guarantor of the fundamental rights. The Supreme Court has been conferred wide power of judicial review. In the exercise of the judicial power it can examine the constitutionality of the executive and legislative act. The High Court has also been conferred the power of judicial review. Thus the Supreme Court and High Court both can examine the act of the executive and legislative and can declare it void if found in contravention of the constitution provisions.

            An important issue is whether the judicial system is against the doctrine of separation of power. In this respect it is to be noticed that the constitution and therefore it can direct the legislative and executive discharge their functions properly. It is the function of legislative to enact law and the executive to implement the law, and if they do not perform their function properly, it is not the power but the duty of Supreme Court to compel them to discharge their function properly.

BLS LLB - HISTORY OF COURTS - CHAPTER NO. 5

CHAPTER – 5

Conflicting arising out of the dual judicial system – tendency for amalgamation of the two systems of courts, the Indian HC act 1861, High Court under the Government of India Act 1915, High court under Government of india act 1935 and High court under the Indian Constitution.

CONFLICT ARISING OUT OF THE DUAL JUDICAI SYSTEM :

            Just before the passing of the Indian High Court Act 1861 there were two types of courts

1)    The Crown Courts

2)    Company’s Court.

The Supreme Court established in Calcutta, Bombay and Madras were the courts of the British Crown where the Adalats established in the Mufassil were the courts of the east india company. These two sets of the courts formed the dual system of courts. These courts had two different set of organization, jurisdiction and powers.

DIFFERENCE BETWEEN CROWNS COURT (SUPREME COURT) AND COMPANY COURT.

SR NO.	CROWNS COURT (SUPREME COURT)	SR NO.	COMPANY’S COURT
1.	The supreme court consisted of the judges who were to be barristers of 5 years standing.	1.	The judge of company’s Adalats did not necessarily have the legal knowledge and training.
2.	The judges of supreme court were appointed by the British Crown and held office during the crown’s pleasure.	2.	The judges of the companys courts were appointed by the company’s government and held office during its pleasure.
3.	In each presidency towns a crowns court known as the supreme court was established.	3.	In the province beyond the presidency towns the company had established an hierarchy of civil and criminal courts. In each province the sardar Diwani Adalat and Sardar Nizamat Adalat were the highest court of the company.
4.	The supreme court applied English law both civil and criminal	4.	The company’s court in the Mufassil area were mainly for natives and they were apply Hindu and Mohammedan Laws.
5.	Supreme Court adopted the procedure of English courts. As regards the Law of evidence they followed English law of evidence.	5.	The company court had no uniform and definite procedure.
6.	The supreme court derived their authority from British Crown.	7.	Company courts derived their authority from the company.

                                                                                                                                                    

                            The dual system of courts came into existence, the relation between the crowns court and the company’s courts was very tense and conflicting. The main cause of the conflict was the uncertain jurisdiction of the supreme court and the company’s court. Then after realized that the merger of the company’s court and the supreme courts was the only remedy to avoid the confusion and conflict. But there were many difficulties in their merger on account of disparities between the two sets of the courts in respect of law and procedure. It was realized that necessary changes must be introduced in the administration of justice to create on atmosphere. For the unification. In 1833 on all India Legislature was create. The laws made it were binding on all courts whether the crowns court or the company’s court. The charter Act of 1833. Which created this all India Legislature specifically provided that the Acts passed by the Legislature would be binding on the crowns court as well as on the company’s courts. Thus in the matter of law uniformity was maintained between the company courts & crowns courts. The another step taken to bring about the uniformity in respect of law to be applied by these courts was the introduction of the provision in the charter Act of 1833. For the appointment of law commission for the codification of India Law. In 1858 the East India Company was dissolved and the government of India wa taken over by the British crown and consequently distinction between the company’s court and crowns court came to end.

INDIAN HIGH COURT ACT 1861 :

The Indian High Courts Act was passed by the British Parliament on the 6th August, 1861 and was titled as an act for establishing high courts of judicature in India. Its main function was to abolish the supreme courts and the Sadar Adalats in the three Presidencies and to establish the high courts in their place. The records and document of the various courts became the records and documents of the High Court concerned. It gave power authority in Her Majesty to issue letters patent under the great seal of the United Kingdom, to erect and establish High courts of judicature at Calcutta, Madras and Bombay.

Each High court was to consist of a chief justice and as many puisne judges not exceeding fifteen as her majesty might think to fit to appoint. Who became the high court judge or who was eligible to become the high court judge.

Judges were selected out of the following categories of persons.

1)    Barrister must have 5 years or more experience.

2)    Member of covenanted evil service of not less than 10 years standing who should have served as Zillah judges for at least 3 years.

3)    Person who shall have held judicial office

Each high court was to have and exercise all such civil and criminal admiralty and vice-admiralty, testamentary, intestate and matrimonial jurisdiction and original and appellate

The High Court was to have superintendence over all courts subject to its appellate jurisdiction. It got power, authority to call for return, to transfer any suit or appeal from one court to another and to make and issue general rules for regulating the practice and proceedings of such courts.

The charter for the Calcutta High Court was issued on May 14, 1862 and was published in Calcutta on the 1st July 1862 establishing the high court from the next day. The charter for the High Courts of Bombay and Madras were issued on June 26, 1862 and these courts were inaugurated on the 14th and 15th August 1862.