The Judiciary System of India : Frontier IAS
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The Judiciary System of India : Frontier IAS
Courts and Justice system in India The courts are divided into three categories with top court, the middle court, and the lower court. The top court is named the Supreme Court, while the middle court is named as High Court, and the lower court is named as District Court.
- The State Judiciary consists of a High Court and a system of subordinate courts.
- Art. 214-231 in Part VI of the Constitution deal with the High Courts.
- Art. 214 provides that there shall be a High Court in each State.
- Under Art. 231, Parliament has the power to establish a common High Court for 2 or more States.
Organization of High Court (Art. 216):
- Under Art. 216, a High Court consists of the Chief Justice and such other Judges as the President may from time to time deem it necessary to appoint.
- The number of Judges in a High Court is flexible and it can be determined by the President from time to time depending upon its workload.
Appointment of High Court Judges (Art. 217):
- In the appointment of a Judge of a High Court, the President shall consult the Chief Justice of India, the Governor of the State, and the Chief Justice of that High Court in the matter of appointment of a Judge other than the Chief Justice.
- In the case of a common High Court for 2 or more states, the Governors of all the states concerned are consulted by the President.
- Supreme Court has made some decisions in the Second Judges Case (1993) and Third Judges Case (1998).
The present position in appointment according to Second Judges Case and Third Judges Case:
- The process of appointment of High Court Judges is an integrated “participatory consultative process”, where all the constitutional functionaries must perform this duty collectively.
- Initiation of the proposal for appointment in the case of a High Court must be made by the Chief Justice of that High Court.
- No appointment of any Judge of a High Court can be made contrary to the opinion of the Chief Justice of India.
- The Third Judges Case established that a collegium of Judges comprising the Chief Justice of India and 2 senior-most Judges of the Supreme Court, giving fair importance to the opinion of the Chief Justice of the concerned High Court, should make a recommendation as to appointment to the President. Other Judges of the High Court and the views of the other Judges of the Supreme Court who are conversant with the High Court concerned can also be consulted.
- In the event of conflicting opinions, the opinion of the collegiums would have supremacy.
Qualifications for appointment as a Judge of High Court:
A person to be qualified for appointment as a Judge of a High Court:
- Must be a citizen of India.
- (a) Must have held a judicial office in the territory of India for at least 10 years; or
(b) Must have been an advocate of a High Court or two or more such Courts in succession for at least 10 years.
Oath or Affirmation (Art. 219):
Under Art. 219, before entering upon his office, a person appointed as a High Court Judge must make and subscribe an oath or affirmation before the Governor of the State.
Tenure of Judges:
- Once appointed, a permanent Judge of a High Court holds office until the age of 62 years. Any dispute regarding the age of a Judge of a High Court is decided by the President in consultation with the Chief Justice of India, which shall be final.
- He can resign his office by writing to the President.
- He vacates his office when he is appointed as the Judge of the Supreme Court or when he is transferred to another High Court.
- A Judge can be removed from his office by the President on the recommendations of the Parliament, only for proved misbehavior and incapacity, in the manner provided for the removal of a Judge of the Supreme Court.
Salaries and Allowances (Art. 221):
- A Judge of a High Court gets a salary of Rs. 2,25,000 per month while the Chief Justice gets Rs. 2,50,000 per month.
- He is also entitled to such allowances and rights as Parliament may determine from time to time.
Transfer of Judge from one High Court to another (Art. 222):
- Under Art. 222, the President is empowered to transfer a Judge from one High Court to another, after consultation with the Chief Justice of India.
- A Judge of a High Court can be transferred without his consent.
- The Third Judges Case, 1998 established that in case of the transfer of the High Court Judges, the Chief Justice of India should consult, in addition to the collegium of 4 senior-most Judges of the Supreme Court, the Chief Justice of the 2 High Courts (one from which the Judge is being transferred and the other receiving him.)
Appointment of Acting Chief Justice (Art. 223):
The President can appoint a Judge of a High Court as an acting Chief Justice of the High Court when:
- The office of Chief Justice of the High Court is vacant.
- The Chief Justice of the High Court is temporarily absent.
- The Chief Justice of the High Court is unable to perform the duties of his office.
Appointment of Additional and Acting Judges (Art. 224):
- Under Art. 224(1), President may appoint duly qualified persons as additional Judges for a period, not more than 2 years, when it appears to the President that because of a temporary increase in the business of High Court or arrears of work, the number of Judges should be increased.
- Under Art. 224(2), President may appoint duly qualified persons as acting Judge when any Judge, other than the Chief Justice, is unable to perform his duties due to absence or otherwise, or when a permanent Judge of the High Court is appointed as its acting Chief Justice. An acting Chief Justice holds office until the permanent Judge resumes his duties.
Both the additional or acting Judge cannot hold office after the age of 62 years.
Appointment of retired Judges:
The Chief Justice of a High Court may, with the prior consent of the President, request a retired High Court Judge to sit and act as a Judge of the High Court for a temporary period.
Independence of High Court:
- The Mode of appointment of Judges ensures that the appointment is based on the basis of merit only.
- The Judges of the High Court are provided with security of tenure. They can only be removed on the grounds of proved misbehavior or incapacity.
- The Judges are allowed to work without fear with no interference from the executive. Being a court of record, the High Court can utilize the power of Contempt of Court and dissuade attempts to influence the Judges.
- The conduct of Judges of the High Court cannot be discussed in Parliament, except on a motion for the removal of a Judge.
- After retirement, a Judge of a High Court cannot plead in a Court before any authority except in the Supreme Court and a High Court other than the High Court in which he held office.
- The salaries and allowances payable to the Judges of the High Court are charged on the Consolidated Fund of State concerned and are not subject to vote in the Legislature. They cannot be changed to their disadvantage after appointment, except during a financial emergency.
Jurisdiction and Powers of High Court:
- Original Jurisdiction
- Writ Jurisdiction
- Appellate Jurisdiction
- Supervisory Jurisdiction
- Control over subordinate courts
- A court of record
- Power of Judicial Review
- It means the power of a High Court to hear disputes in the first instance, not by way of appeal.
- It extends to the following matters:
- Matters of admiralty, will, marriage, divorce, company laws, and contempt of court.
- Disputes regarding the election of members of Parliament and State Legislature.
- Regarding revenue matter or an act ordered or done in revenue collection.
- Enforcement of Fundamental Rights of citizens.
- Cases ordered to be transferred from a subordinate court involving the interpretation of the Constitution to its own file.
- 4 High Courts (Calcutta, Bombay, Madras, and Delhi) have original civil jurisdiction in cases of higher value.
- Under Art. 226, a High Court has the power of issuing directions, orders or writs for the enforcement of Fundamental Rights and for any other purposes.
- The power of the High Court to issue writs for the enforcement of Fundamental Rights is concurrent i.e. parallel to the same power of the Supreme Court (under Art. 32).
- Under Art. 32, the Supreme Court can issue writs only where a Fundamental right has been infringed, while High Courts can issue writs for enforcement of Fundamental Rights as well as for any other purpose i.e. ordinary legal rights of the citizen. Thus, the jurisdiction of High Courts under Art. 226 is wider than that of the Supreme Court under Art. 32.
- The High Courts may or may not exercise the writ jurisdiction to grant relief to the aggrieved citizen. But the Supreme Court is bound to issue writs. However, a citizen can alternatively appeal to the High Court for enforcement of his ordinary legal rights or otherwise under the supervisory jurisdiction granted to the High Court over subordinate courts.
- The territorial jurisdiction of the High Courts is limited to the extent granted to it by the Parliament, which is generally limited to one or a combination of states and Union Territories. But, the territorial jurisdiction of the Supreme Court extends to the whole of India.
- A High Court is primarily a court of appeal. It hears appeals against the judgments of subordinate courts functioning in both civil and criminal matters.
- It has appellate jurisdiction in both civil and criminal matters.
- First appeals from the orders and judgments of the district courts, additional district courts, and subordinate courts lie directly to the High Court, on both questions of law and fact.
- Second appeals from the orders and judgments of the district court or other subordinate courts lie to the High Court in the cases involving questions of law only.
- The Calcutta, Bombay, and Madras High Courts have provision for intra-court appeals.
- Appeals from the judgments of sessions court and additional sessions court lie to the high court if the sentence is of imprisonment for more than 7 years. Also, a death sentence awarded by a sessions court or an additional sessions court should be confined by the high court before it can be executed, whether there is an appeal by the convicted person or not.
- In some cases specified in various procedures of the Criminal Procedure Code, the appeals from the judgments of the assistant sessions judge, magistrates lie to the high court.
A high court has the power of superintendence over all courts and tribunals functioning in its territorial jurisdiction (except military courts or tribunals).
Thus, it may:
- Call for returns from them.
- Make an issue, general rules, and prescribe forms for regulating the practice and proceedings of them.
- Prescribe forms in which books, entries, and accounts are to be kept by them.
- Settle the fees payable to clerks, officers, and legal practitioners of them.
Control over Subordinate Courts:
- It is consulted by the Governor in the matters of appointment, posting, and promotion of district judges and the appointments of persons to the judicial service of the state (other than district judges).
- It deals with the matters of posting, promotion, grant of leave, transfers, and discipline of the members of judicial service of the state (other than district judges).
- It can withdraw a case pending in subordinate court if it involves a substantial question of law that requires the interpretation of the Constitution. It can then either dispose of the case itself or determine the question of law and return the case to the subordinate court with its judgment.
- Its law is binding on subordinate courts functioning under its territorial jurisdiction.
A Court of Record:
- The judgments, proceedings, and acts of the high courts are recorded for perpetual memory and testimony. These records are admitted to be of evidentiary value and cannot be questioned when produced before any subordinate court. They are recognized as legal references.
- It has the power to punish for contempt of court, either with simple imprisonment or with a fine, or both.
Power of Judicial Review:
It is the power of a high court to examine the constitutionality of legislative enactments and executive orders of both Central and State Governments.
Subordinate or Lower Courts in Districts:
- In each district of India, there are many types of subordinate courts whose structure and functions are somewhat similar throughout the country.
- They are civil courts, criminal courts, and revenue courts.
- These courts have been derived from the Code of Civil Procedure, 1908, and the Code of Criminal Procedure, 1973.
- Under Art. 235, the administrative control over the members of subordinate judicial service vests with the concerned High Court.
- The State Government shall frame rules and regulations in consultation with the High Court exercising jurisdiction in relation to such state.
Qualifications and Appointment of Judges:
- The judges of subordinate courts are appointed by the Governor in consultation with the Chief Justice of the High Court of the concerned State.
- In most of the States, judicial service officers including the magistrates are selected through competitive examinations held by the State Public Service Commission. They are finally appointed by Governor.
- Any person who has been an advocate for at least 7 years or one who is in the service of the State or the Central Government is eligible to be a judge of the District Court provided he possesses the required legal qualifications.
- Civil Courts deal with cases related to disputes between 2 or more persons regarding property, divorce, contract, and breach of an agreement or landlord-tenant disputes.
- The Court of the District Judge is the highest civil court in a district to deal with civil cases.
- The same court is called the Court of District and Sessions Judge when it deals with both civil and criminal cases at the district level.
- The judge of this court is appointed by the Governor of the State.
- Below the Court of District Judge, there may be 1 or more courts of sub judges in the district. Separate family courts, which are equal to courts of sub judge, have been established in districts.
- Below them, there are courts of Munsiffs and Small Causes courts which decide cases involving small amounts. No appeal can be made against the decisions of small causes courts.
- The Court of the District Judge hears not only appeals against the decisions of the courts of sub judges, but also some cases that begin directly here. Appeals against the decisions of this court may be heard by the High Court of the State.
- Criminal Courts hear criminal cases related to violation of laws. These cases involve theft, dacoity, rape, arson, pick-pocketing, physical assault, murder, etc. In such cases, the guilty person is awarded punishment. It may be fine, imprisonment, or even a death sentence.
- Normally, every accused is presented by the police before a magistrate. The magistrate can finally dispose of cases of a minor crime. But when a magistrate finds a serious crime, he may commit the accused who are sent to them by the magistrate concerned.
- An accused who is awarded a death sentence by the sessions court can be hanged to death only after his sentence is confirmed by the High Court.
- The Courts of the Sessions Judge (known as Sessions Courts) is the highest court for criminal cases in a district.
- Below this court, there are courts of magistrates of the First, Second, and Third class.
- In metropolitan cities like Delhi, Chennai, etc. First Class Magistrates are called Metropolitan Magistrates.
- Revenue courts deal with cases of land revenue in the State.
- The highest revenue court in the district is the Board of Revenue.
- Under it are the Courts of Commissioners, Collectors, Tehsildars, and Assistant Tehsildars.
- The Board of Revenue hears the final appeals against all the lower revenue courts under it.
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