JUDICIARY AND IT’S CLASSIFICATION
Author: Shubhi jaiswar,
B.A.LL.B. -1ST YEAR,
[HEMWATI NANDAN BAHUGUNA GARHWAL UNIVERSITY],
PANDIT PURNANAND TIWARI LAW COLLEGE HARIDWAR.
The judiciary is the system of courts that interprets and applies the law in the name of the state. the judiciary also provides a a system for the resolution of disputes.there is a single integrated judicial system in India it is organised in pyramidal form at the apex of the entire judicial system stands the supreme court of India.immediately below the supreme court are the various high courts and below them are the subordinate courts in each state.all the courts in the union of India are under the control of the supreme court and the decision of supreme court are binding on all all other courts within the territory of India. The judiciary can also be thought of as the mechanism for the resolution of disputes. Under the doctrine of the separation of powers, the judiciary generally does not make statutory law or enforce law , but rather interprets law and applies it to the facts of each case. However, in some countries the judiciary does make common law.
1- Supreme court
3- District court
4- Subordinate courts
SUPREME COURT( Art- 124-147)
Supreme court stand at the apex of the judicial system of India. It is the ultimate interpreter of the constitution and the laws of the land. Article 124 States the the establishment and constitution of supreme court. Supreme court was inaugurated on 28 January 1950. At present the supreme court consists of 31 judges.The Supreme Court of India is the supreme court with the power of judicial review and the last court of appeal under the Constitution of India consisting of the Chief Justice of India and the maximum judges. It has broad powers as to the original appellate and advisory jurisdiction.
As the court of final appeal of the country it mainly appeals against the decisions of various states of the Union and other jurisdictions. It protects the fundamental rights of citizens. The law declared by the Supreme Court becomes binding on all courts within India and by the central state governments. According to Article 142 of the Constitution, it is the duty of the President to implement the order of the Supreme Court.The division of powers between the Union and the states is a fundamental element of the federal constitution. This division is done by a constitution which is the supremacy law of the country because the powers of governments are divided by a written constitution. Therefore, it is also possible to interpret the provision related to the constitution in its own favor. Correct interpretation of the provisions of the constitution is necessary. For this, such an institution is required to be independent and impartial and can settle disputes between the central and state governments fairly.
(Appointment of cheif justice)
only senior most judge on the supreme court appointed by the president as CJI.
Qualification- under article 124 a person to be appointed as a judge of the supreme court should have the following qualifications.
He should be a citizen of India
he should have been a judge of a High court for 5 years
he should have been an advocate of a High court for 10 years.
he should be distinguished jurist in the opinion of president.
the constitution does not prescribe a minimum age for appointment as a judge of the supreme court.
(Jurisdiction and powers of supreme court)
Original jurisdiction (Art-131)~ the supreme court decides the disputes between the centre and one or more States the centre and any state or States on one side and one or more States on the other aur between two or more States.
In the above disputes the supreme court has exclusive original they lie directly and exclusively with the supreme court.
Writ jurisdiction (Art-32)~every individuals has the right to move the supreme court directly by appropriate proceeding for the enforcement of his fundamental rites through the issuance of writs.
Appellate jurisdiction (Art-132)~The supreme court is primary court of appeal and hears appeals against the judgement of the lower courts. It enjoys a wide appellate jurisdiction which can be classified under four heads.
1- Appeal in constitutional
2-Appeals in civil matters (Art- 133)
3-Appeals in criminal matters (Art-134) 4-Appeal by special leave (Art-136)
Advisory jurisdiction~ The constitution article 143 authorised the president to seek the opinion of the supreme court. It is duty bound to give its opinion which is not binding on president.
Power of judicial review (Art-137)~ Judicialreview is the power of supreme court to examine the constitutionality of legislative enactments and executive order of both Central and state government on examination if they are found to be violative of the constitution they can be
declared as illegal unconstitutional and invalid and they cannot be enforced by any authority.
Judicial review is needed for what is reason to hold the supremacy of the constitution ,
maintain federal equilibrium protect the fundamental rights of the citizens.some famous cases in which the supreme court used the power of judicial review are as follows:-
golaknath case 1967
Bank Nationalisation case 1970
privy purse abolition case 1971
Keshav Nanda Bharti case 1973
Minerva Mills case 1980
Article 141 – load cleared by supreme court to be binding on all courts within the territory of India.
Public interest litigation- any person can now inteate proceeding on behalf of the aggrieved person is either the high court or the supreme court for the protection of greater public interest.
Independence of judges:-
The Indian Constitution protects the citizens from any partial judgment. And, this gives the power to the judiciary to make decisions based on the rules of the law, in case of any dispute. Due to such authority, the judiciary of the country is an independent body. The courts of India are not controlled by the government and do not represent any political authority. Such independence allows the judiciary to ensure that there is no misuse of power by any section of the government.
The independence of judiciary calls for ‘separation of powers Warriors organs of the polity is based on doctrine of check and balance, and independence from arbitrary encroachment of legislature.
mode of appointment of CJI and judges of the supreme court. security of tenure.
fixed service conditions.
conduct of judges cannot be discussed in in parliament or state legislature. ban on practice after retirement.
power to punish its contempt.
freedom to appoint its staff.
its jurisdiction cannot be curtailed. difficult removal procedure.
separation from executive.
Removal of judges or impeachment:-
Under article 124 a judge of the supreme court shall not be removed from his office accept by an order of the president passed after an address by each house of the parliament buy social majority. Judges can be removed only on the ground of proved misbehaviour or incapacity.article 124 parliament near by law regulate the procedure relating to the removal of a judge of the supreme court.under this article parliament provides the procedure for removal by the judges enquiry act 1968.
no judge of the supreme court has been impeached so far. The first such case of impeachment is that of of justice v Ramaswamy of the supreme court in Loksabha 1991 to 1993 but finally he could not be impeached.
the second case of impeachment is that of justice Soumitra Sen of Calcutta High court the BSP was the only party to oppose the motion to remove the judge.After this he resigned and there was no need for impeachment.
Under article 217 a judge of the High court may be writing under his hand address to the president resign his office. Under article 124 a judge of the supreme court may by writing under his hand addressed to the president resign his office.
High Court of India each state. And the Union Territory has the principal courts of original jurisdiction. However a High Court exercises its original civil and criminal jurisdiction only if the subordinate court is not authorized by law to try for lack of dissolutionary jurisdiction in such cases. Most of the High Court functions consist mainly of appeals to lower courts and
petitions with reference to Article 226 of the Constitution. (Writ) Jurisdiction is also an
original jurisdiction of the High Court. The largest judicial power at the state level rests with the High Court in the country. They have jurisdiction over the state union territory or group of states. The oldest High Court was established in Kolkata in 1862. Civil and criminal lower courts and tribunals function under the High Court. All the High Courts in India come under
the Supreme Court. According to Article 214 of the Constitution, there is a provision of one court for each state. Each High Court has a Chief Justice and other judges appointed by the President. All the High Courts fall under the Supreme Court and the litigation goes to the Supreme Court on any matter. There is a part of the judiciary in running the governance system of any country in four ways, it shows from the organization of judiciary how much freedom the people of the country have. India is a democratic country. India’s judiciary is very well organized. The courts from top to bottom are related to each other.
The judiciary of India is organized according to the judiciary of England.
-every High court consists of a chief justice and such other judges as the President may from time to time deem necessary to appoint.
-accordingly the president determines the strength of a High court from time to time depending upon its workload.
-the constitution of India provides a high court for each state but the 7th amendment act of 1956, authorise the parliament to establish a common High court for two or more States or a state and a union territory.
-the territorial jurisdiction of High court is co-terminus with the territory of a state.
-at present there are 24 High courts in the country out of them 3 and 7 are common high courts for States and for both states and union Territories respectively
-the union territory of Andaman and Nicobar Islands come under the jurisdiction of circuit bench of Kolkata high court at Port Blair.
Appointment of judges-
-under article 217 the judges of the High court are appointed by president.
-the chief justice of High court is appointed by the president after consultation with the chief justice of supreme court and governor of the concerned state.
He should have held a judicial officer in the territory of India for 10 years or he should have been an advocate of a High court for 10 years.
oath is administered by governer or person appointed by him for this purpose.
Determined by parliament from time to time.
JURISDICTION AND POWER OF HIGH COURTS:-
At present a high court enjoy the following jurisdiction and powers:-
writ jurisdiction (Art-226)
control over subordinate courts A court of record
power of judicial review.
Independence of High court:-
-mode of appointment.
-security of tenure.
-fixed service conditions.
-expenses charged on the consolidated fund of state.
-conduct of judge cannot be discussed.
-ban on practice after retirement.
-power to punish for its contempt.
-freedom to appoint its staff.
-its jurisdiction cannot be curtailed.
-separation from executive.
Article 233 to 237 in part 6th of the constitution make the provisions to regulate the
organisation of subordinate courts and an ensure thier independence from the executive.
Appointment of district judges:-
– He should not already be in the central or the state government.
– He should have been an advocate or a pleader for seven years.
– He should be recommended by the high court.
Appointment of other judges:-
Appointment of person to the judicial service of a state are made by the governer of the state after consultation with the state public service commission and the High court.
– lok Adalat established by the Government settles the dispute through conciliation and compromise.the first lok Adalat was held in gujrat on 14th march , 1982.
– The lok Adalat is presided over by a sitting or retired judicial officer as chairman with two other member usually a lawyer and a social worker there is no court fee.
– If the case is already filed in a regular court the sea is paid is refunded if the dispute is settled at the lok Adalat.
– Lok Adalat is very effective in settlement of money claims. Disputes like partition suits damages and matrimonial cases can also be easily settled in lok Adalat, as chances of compromise , through give and take approach stand High in such cases.
– lok Adalat is a boon to the litigant public, where we can get their disputes settled fast and free of cost.
– lok Adalat have been given the status of a civil court and every award made by the lok
Adalat is final and binding on all parties and no appeals lies to any court against its awards.
Salaries and allowance:-
Under article 125 the salaries allowances, privileges leave and pensions of the judges of the supreme court are determined from time to time by the parliament.
salary of chief justice of India is 1 lakh per month salary of other judges of supreme court is 90000 per month.
the retired chief justice and judges are entitled to 50% off their last drawn salary as monthly pension.
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