HISTORICAL BACKGROUND OF JUDICIAL SYSTEM IN INDIA, Lecture notes of Law

Download HISTORICAL BACKGROUND OF JUDICIAL SYSTEM IN INDIA and more Lecture notes Law in PDF only on Docsity!

CHAPTER- III

PRESENT INDIAN JUDICIAL SYSTEM: AN ANALYSIS.

CHAPTER- III

3.0 PRESENT INDIAN JUDICIAL SYSTEM: AN ANALYSIS.

3.1 Introduction

The British Raj refers to the British rule between 1858 and 1947 of the Indian Subcontinent, or present-day India, Bangladesh, Pakistan, and Myanmar, during the period whereby these lands were under the colonial control of the United Kingdom as part of the British Empire. 1 2 In India, British style courts were established by the East India Company

in 1775,^ 'y wherein the British ignored local indigenous adjudication procedures and modulated the process of adjudication in the courts on that of the British law courts of the period. The party control over evidentiary development of litigation has traditionally been a significant distinguishing feature of the British, American, and Indian systems compared to the Continental European systems of Germany and France, and former colonies influenced by models of greater judicial control. 3 The structure of the Indian judiciary has both vertical and horizontal dimensions and is more accurately described as a pyramid, arguably a comparatively flat one. 4

The present Indian Law is largely derived from English common law which was first introduced by the British when they ruled India. Various Acts and Ordinances which were introduced by the British are still in effect today. 5 The outcome of a legal judgment in favour of one party or the other, rather than a compromise or conciliated settlement, is a feature common to formal legal systems of Roman origin, not only those based on (^1) 2 (^) http://en.wikipedia.org/wiki/JudgeBernard C. Cohn, Some Notes on Law and Change in North India, 8 Econ. Dev. & Cultural Change 3 John79,90 H. Langbein,(1959) the German Advantage in Civil Procedure, 52 U. Chi. L. Rev. 823 (1985). (^4) 5 (^) Ibid, Raj Kumari Agrawala, History of Courts and Legislatures, in (Minattur Joseph), The Indian Legal System 1978. 63

3.2 Indian Constitution and Judicial System: The Indian Constitution is founded upon the doctrine of separation of powers. As per this doctrine there are three organs viz., Legislature, Judiciary and Executive and all these three organs should discharge their functions independently, none should encroach one upon another. Nevertheless in India, this doctrine is not applicable strictly, but checks and balance theory is applicable. Indian Constitution has adopted the federal system of America, and there exists separate sphere for the Centre and States. Nevertheless to administer both Union and State laws, the Constitution of India provides for a single integrated system of courts. In the hierarchy of the judicial system at the apex there exists Supreme Court of India consisting of a Chief Justice and 25 other justices, appointed by the president. 11 It is constituted as the supreme guardian of the Constitution of India and also the Supreme Guardian as well as the Protector of Fundamental Rights. 12 The High Court stands at the head of the state's

judicial administration.

Articles 233 to 237 of the Constitution of India deal with subordinate courts. Different State laws furnish for distinct species of jurisdiction of courts. Each state is divided into judicial districts presided over by the Principal District and Sessions Judge, who is the Principal Civil Court of original jurisdiction and can try all offences including those punishable with death. He is the highest judicial authority in a district. Below him, there are courts of civil jurisdiction, known in different states as Principal Civil Judge Senior Division, Principal Civil Judge Junior Division, Similarly, criminal judiciary comprises Chief Judicial Magistrate and Judicial Magistrate First Class.

1112 Art.Art. 32124 (2) of Indian Constitution. 65

3.3 Hierarchy of Courts 3.3.1 The Supreme Court of India The Supreme Court has original, 13 appellate 14 and advisory jurisdiction. 15 Its exclusive original jurisdiction extends to all disputes between the Union and one or more States or between two or more States. The Indian Constitution confers an extensive original jurisdiction to the Supreme Court to enforce Fundamental Rights. 16 Appellate

jurisdiction of the Supreme Court can be invoked by a certificate of the High Court concerned or by special leave granted by the Supreme Court in respect of any judgment, decree or final order of a High Court in cases both civil and criminal, involving substantial questions of law as to the interpretation of the Constitution. 17 The President may consult the Supreme Court on any question of fact or law of public importance under Article 143 for its advisory opinion. The judgment of the Supreme Court is regarded as law of the land. 18 It has many Benches for the litigation, and this apex court is not only the final court of Permissible Appeal, but also deals with: interstate matters, and matters comprising of more than one State, and the matters between the Union government and any one or more States, on its original side. The President of India may wherever necessary seeks consultation, opinion and guidance of the Supreme Court. The Supreme Court is empowered to punish any person for contempt. The Constitutional Bench is the largest Bench of the Supreme Court of 1314 Ibid,Ibid, Art.Arts. 131. 132 to 134. 1516 Ibid,Ibid, Art.Art. (^) 32.143. "ibid 18 Ibid Art.Art. 132(1).141. 66

i- 1123 Z^ P‘^2

Constitution. In fact, when apparently there is no effective remedy available to a person in equity, it can always move the High Court in an appropriate writ. High Courts are empowered to frame their own rules, and arrange to implement them. These Courts have the ordinary original civil jurisdiction, under certain provisions of Law. Many times the High Courts have concurrent jurisdiction in addition to subordinate courts, for effective remedy at the earliest. For the purpose of speedier, cheaper and effective dispensing of justice, some of the High Courts have different division benches in different parts of the respective states. For the of disposal of its business, the Judges in the High Court, either sit singly or in benches of two or more judges for deciding more important matters. Each High Court comprises a Chief Justice and such other judges as the President may, from time to time, appoint. The Chief Justice of High Court is appointed by the President in consultation with the Chief Justice of India and the Governor of the State. 21 The procedure for appointing puisne judges is the same except that the Chief Justice of the High Court concerned is also consulted. They hold office up to 62 years of age and are removable in the same manner as a judge of the Supreme Court. To be eligible for appointment as a judge, one must be a citizen of India and have held a judicial office in India for 10 years or must have practiced as an advocate of a High Court or two or more such courts in succession for a similar period. Every High Court is empowered to issue to any person or authority and government within its jurisdiction, direction, orders or writs including writs, which are in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, for the purpose of

(^2122) Ibid,Ibid, Art.Art. 217(2)217(1). 68

enforcement of Fundamental Rights and for any other purpose. 23 This power may also be

exercised by any High Court exercising jurisdiction in relation to territories within which the cause of action, wholly or in part, arises for exercise of such power, even if the seat of such Government or authority or residence of such person is not within those territories. Each High Court has empowered to superintendence over all courts within its jurisdiction. It has been empowered to call for returns from such courts, make and issue general rules prescribe forms to regulate their practices and proceedings and determine the manner and form in which book entries and accounts shall be kept. 3.3.3 Organization of Subordinate Courts In India, throughout the country the structure and functions of the subordinate courts are more or less uniform. Descriptions of courts indicate their functions. In pursuance of the powers bestowed upon them the subordinate courts deal with all disputes of civil or criminal nature. The proceedings before the subordinate courts are subject two important codes prescribing procedures, the Code of Civil Procedure, 1908 and the Code of Criminal Procedure, 1973 and further strengthened by local statutes. The. administrative control over the members of the subordinate courts vests with High Courts under Article 235 of the Constitution of India. In relation to such State to exercise further powers bestowed under proviso to Article 309 read with Article 233 and 234 of the Constitution, the State Government should frame rules and regulations in consultation with the High Court. The members of the State Judicial Services are governed by these rules and regulations. For the first time under the directive of the Supreme Court of India, the Central Government has set up a National Judicial Pay Commission to examine the present structure of emoluments and conditions of service of judicial officers 23 Ibid, Art. 226. 69

subordinate Magistrates as well as to try serious offences, as prescribed by law. Nevertheless these courts have also been given original criminal jurisdiction under many enactments. This court exercises jurisdiction within its territorial or local jurisdiction of

the District. 3.3.3.3 City Civil and Sessions Courts: These Courts are only in the Mumbai, Chennai and Kolkata, and are primarily Civil Courts of original jurisdiction of higher monetary valued suits, however these courts have also been given powers of certain appeals against its subordinate small cause ’s courts. The session ’s courts are primarily Criminal Courts, with jurisdiction to revise the orders from the subordinate metropolitan magistrates as well as to try serious offences, as prescribed by law. 3.3.3.4 Principal Civil Judges (SD& JD) Courts: Depending on the monetary jurisdiction assigned to the category of the court, all the civil litigation matters are filed before the courts of the original civil jurisdiction, either the Senior Division or the Junior Division depending upon the workload of the court. These courts again classified into I Additional Civil Judge Senior Division, II Additional Civil Judge Senior Division and Civil Judge Junior Division, I Additional Civil Judge Junior Division, II Additional Civil Judge Junior Division. Most of the times there are more than one Judges of the Junior Division in every Tehsil, and of Senior Division in every District. 3.3.3.5 The Chief Judicial Magistrates and other Judicial Magistrates’ First Class: In every district the State government may, after consultation with the High Court, establish as many Courts of Judicial Magistrates of the First Class and of the second Class, depending upon the work load. The presiding of these courts shall be appointed by the High Court. 25 The Chief Judicial Magistrate heads over the other Judicial Magistrates of First Class in every 25 Section 11 (2) Cr.p.c, (^197371)

tehsil. Every Chief Judicial Magistrate shall be subordinate to the Sessions Judge and other Judicial Magistrates shall, subject to the general control of the sessions Judge, be subordinate to the Chief Judicial Magistrate. These courts are primary criminal courts, where every offender is first produced after arrest by the police. 3.3.3.6 Special Executive Magistrates: In every district the State Government may after consultation with the High Court, establish, for local area, one or more Special Courts of Judicial Magistrate of the First Class or the Second Class to try any particular case or particular class of cases. Where any such special Courts have been established, no other court of Magistrates in the local area shall have jurisdiction try any such case or class of cases. The presiding officers of such courts are appointed by the High court. These and other Magistrates of the Second class are appointed for trying of very minor criminal offences and quasi criminal matters, and generally report directly to and are subordinate to the Chief Judicial Magistrates, who also generally hears appeals against the orders passed by these magistrates. 3.3.3.7 Courts of the Metropolitan Magistrates: In every Metropolitan area, the State Government may, after consultation with the High Court, establish courts of Metropolitan Magistrates, at such places and in such numbers as it thinks necessary. The presiding officers of such courts are appointed by the High Court. The Jurisdiction and powers of every such Magistrate shall extend throughout the Metropolitan area. In every Metropolitan area, the High Court shall appoint Metropolitan Magistrate as Chief Metropolitan Magistrate. 29 The Chief Metropolitan Magistrate and every Additional Chief Metropolitan Magistrate shall be subordinate to the Sessions Judge and every other (^26) 27 (^) Ibid Section 9 Cr.p.c, 1973. 2829 SectionSection 1617 Cr.p.c,Cr.p.c, 1973. 1973 72

In the Anglo-Indian adversary system, a party may not be judged without having been heard or called. Parties must disclose in due time to one another factual arguments supporting their claims, the means of evidence they produce and the legal arguments they rely upon so that each party may organise his defence. Parties choose freely their advocate either to represent them or to assist them in accordance with what the law allows or requires. Oral arguments are held in public hearings, save where the law requires or allows that they be held in the judge's chamber. The parties to a dispute or their advocates square off against each other and assume roles that are strictly separate and distinct from that of the decision maker, usually a judge or jury. In his decision, the judge may take into consideration grounds, explanations and documents relied upon or produced by the parties only, if the parties had an opportunity to discuss them in an adversarial manner. He shall not base his decision on legal arguments that he has raised sua sponte without having first invited the parties to comment thereon. The decision maker is expected to be objective and free from bias. Rooted in the ideals of the present Indian judicial system, the modem adversary system reflects the conviction that everyone is entitled to a day in court before a free, impartial, and independent judge. Adversary theory holds that requiring each side to develop and present its own proofs and arguments is the surest way to uncover the information that will enable the judge or jury to resolve the conflict. In an adversary system, the judge or jury is a neutral and passive fact finder, dispassionately examining the evidence presented by the parties with the objective of resolving the dispute between them. The fact finder must remain uninvolved in the presentation of arguments so as to avoid reaching a premature decision.

74

The term Adversarial means a competitive battle between disputing parties in respect of their dispute. In this process when there is legal wrong or injury caused to a person or determined class of persons by reason of a violation of legal right or Constitutional right, then aggrieved party (i.e., Plaintiff\ Petitioned Applicant) by paying of the prescribed court fee may file suit/petition/writ petition in the appropriate court to enforce their infringed right. The Registrar of the Court or the Chief Justice of India or High Court or Principal District Judge or Principal Civil Judge Senior or Junior Division will allocate the case either to appropriate Bench or other inferior Presiding Officers of the court depending upon the facts of the case and its importance. Thus for the disputing parties the judge will have no access. They also have no freedom to choose their own judge for their case. A civil proceeding involves generally many stages including pleadings, a determination of Jurisdiction, trial, judgment and decree, appeals (including revision and review), and execution. 32 The present Indian Judicial civil system resembles this process. The adversarial process commences proceedings by filing a plaint by the plaintiff. After filing the plaint the court will issue summons to the defendant for his appearance and filing his written statement. The defendant has to appear before the courts on the date on which his appearance is fixed and required to file his written statement. On the basis of pleading filed by the each party, the court will frame issues or points for determination. Each party will lead their evidence and they have to prove respective case. This system permits the disputing parties to control their dispute. They are also required to present their case in their own ways. From this it is very clear that parties have got primary responsibility to 32 Ibid 75

The court will not interfere in the matter of collecting required information to discover the truth. The role of the court is just like a passive umpire. Thus the parties\their lawyers play an important role in proving their respective case. The courts simply watchdog of those facts and give its decision by mechanically applying law or similar principles to such facts taking into consideration materials placed on the record. In criminal proceedings also when there is a legal wrong or injury is alleged to have been caused, then on behalf of aggrieved person any body can set the criminal law in motion. The investigating officer investigates the case and submits the case and produce the accused before the appropriate court. The public prosecutor conducts the case on behalf of State and tries to prove the case against the wrongdoer. In certain situations even the private persons may also file criminal cases against the wrongdoer, when the officer in charge of police station refuses to record the statement of the complainant. The criminal court gives equal opportunity to the parties to represent their cases. Both parties have equal rights to produce their oral and documentary evidence, to have right to be represented by their advocates and place their arguments through their advocates. The court punishes or acquits the accused person only after hearing the arguments according to the procedure. The court does not show any bias and it acts strictly in accordance with the legal rules only. The parties to an Anglo-Indian lawsuit are responsible for gathering and producing all the evidence in the case. This forces them to develop their arguments and present their most compelling evidence, and also preserves the neutrality and passivity of the fact finder. The adversary process is governed by strict rules of evidence and procedure that allow both sides equal opportunity to argue their cases. These rules also help ensure that 77

the decision is based solely on the evidence presented. The structure of this legal system naturally encourages zealous advocacy by lawyers on behalf of their clients, but the code of ethics governing the conduct of lawyers is designed to curb the tendency to attempt to win by any means. Thus in the adversarial proceeding the rule of the court is just like a passive umpire. The presiding officer has no rule to play, but give his verdict on the basis of materials placed on the records. Further it consumes a lot of time since before deciding the case the parties are permitted to produce number of interim applications. The aggrieved party has also got right to prefer appeal, revision, review etc against order passed by the lower court. In conclusion, it may be stated that the adversarial system is quite cumbersome. There is little control over inefficient legal representatives and lawyers who manipulate the system to gain unfair advantage for their client or to increase legal cost. Often the system of cross-examination is intimidating to witnesses, it places them in uncomfortable surroundings and forces them to choose sides, when they really should be there to testify as to the facts as they know them. This is a clear indication that at times the adversarial system is ineffective and flawed. 3.4.2 Inquisitorial Process of Dispute Resolution 3.4.2.1 Introduction Beginning in 1198, Pope, Innocent III, issued a series of decrees that reformed the ecclesiastical court system. Under the new processus per inquisitionem (inquisitional procedure) an ecclestiastical magistrate no longer required a formal accusation to summon and try a defendant. Instead, an ecclesiastical court could summon and interrogate witnesses of its own initiative, and if the testimony of those witnesses accused a person of 78

is purely inquisitorial and the common law adversarial, indeed the ancient Roman custom of arbitration was the earliest form of adversarial proceeding, has now been adapted in many common law jurisdictions to a more inquisitorial form. In some mixed civil law systems, such as those in Scotland, Quebec and Louisiana, while the substantive law is civilian in nature and evolution, the procedural codes that have developed over the last several hundred years are based upon the English adversarial system.^ "

3.4.2.2 Meaning and Scope of Inquisitorial System An inquisitorial system is a legal system where the court or a part of the court is actively involved in determining the facts of the case, as opposed to an adversarial system where the role of the court is solely that of an impartial referee between parties. The term ‘inquisitorial’ is derived from Latin terms ‘quae’ meaning ‘questing ’ and inquire meaning ‘to ask.’ This process is originated from French legal system. Inquisitorial systems are used in most countries in Western Europe and Latin America. The inquisitorial system applied to questions of criminal procedure as opposed to questions of substantive law; that is, it determines how criminal enquiries and trials are conducted, not the kind of crimes for which one can be prosecuted, nor the sentences that they carry. It is most readily used in many, but not all civil legal systems. The main feature of the inquisitorial system in France (and other countries functioning along the same lines) in criminal justice is the function of the juge d ’instruction, often translated as investigating magistrate. The juge d'instruction is a judge who conducts the investigations in the case of severe crimes or complex enquiries. He or she is independent from the political power as well as the

37 Ibid 80

prosecution. Contrary to the prosecution, which is, in final, supervised by the Minister of Justice, the juge d'instruction, as a judge, is independent of the executive branch. The judge hears witnesses and suspects and orders searches or other investigations. The goal of the juge d’instruction is not the prosecution of a certain person, but the finding of truth, and as such his duty is to look both for incriminating and exculpating evidence (a charge et a decharge ). Both the prosecution and the defense may request actions from the judge, and may appeal the judge's decisions before the court of appeal. The scope of the enquiry is limited by the mandate given by the prosecutor's office: the juge d ’instruction cannot start to investigate crimes on his own accord. 39

If the juge d ’instruction decides there is a valid case against a certain suspect, he refers the suspect to a tribunal or court, where the proceedings oppose the prosecution and the defense. The juge d ’instruction does not sit in the court that tries the case and is in fact prohibited from sitting on future cases involving the same defendant. The case is tried before the court in a manner similar to that of adversarial courts: the prosecution generally asks for Jhe conviction of the criminals, the defense counsels fights their claims, and the judge or jury draw their conclusions from the evidence shown. Juges d 1 instructions are used only for the most severe crimes (murder, rape, etc.), and for moderately serious crimes (embezzlement, misuse of public funds, corruption, etc.) when the case has a certain complexity. 40

In administrative courts such as the Conseil d'Etat at litigation, the proceedings are markedly more inquisitorial. Most of the procedure is conducted in writing; the plaintiff 3839 IbidIbid 40 Ibid 81