The legal System in India follows the common law model prevalent in the countries which were at one time under British Rule. The jurisprudence followed in India is almost the same as the one prevalent in England, though it has been cross- fertilized by Indian traditions and values.

The Constitution of India has set up three branches of the State:

1. The legislature (make laws)
2. The executive (proper execution of laws made on ground level)
3. The judiciary (look after the implementation and disputes regarding law made)

The judiciary is invested with the power to ensure that all organs of the Constitution act within their Constitutional limits. It is also the sole interpreter of the Constitution and the sole arbiter in all constitutional disputes.

India follows adversary system of judicial procedure. This means that the judge acts as a neutral arbiter upholding the balance between the contending rivals without actively taking part in forensic debates in the court.

Judicial Independence is one of the basic features of the Indian Constitution and the courts jealously guard it. No incursion into the judicial arena by the executive or legislative, except as authorized by the Constitution, would ever be tolerated by courts.

Even the appointment of judges to the High Courts and Supreme Courts has been taken over by the judges by creative interpretation of the Constitutional provisions.

The Doctrine of Judicial Review of legislative and executive acts is another immutable value of Indian legal system. It goes hand in hand with the doctrine of independence of judiciary.

The judiciary occupies an important place in the Indian Federal System. The constitution divided their jurisdictions into three lists: the Union list, the State list, the Concurrent list. However, there is always a possibility of disputes between the central and state government or between state governments. The judiciary plays crucial role in such situations.

The Constitution of India lays down that judiciary would resolve disputes between the Center and State government or between the States. Moreover, judiciary is also responsible for ensuring that the rights of citizens are protected and the powers of government do not cross the limit prescribed or irrational decisions are not enforced.

An independent judicial set up is must for any Federation. It ensures, on one hand authentic interpretation of the Constitution and on the other, it resolves disputes, Constitutional or otherwise between Union and a unit or Units of federation. India has a single, unified system for the entire country.

HIERACHY SNAPSHOT OF INDIAN JUDICIARY

The Constitution of India provides for a single integrated judicial system. India does not have separate State courts. The structure of judiciary in India is pyramidal with the Supreme Court at the top.

High Courts below them and district and subordinate courts at lowest level. The lower courts function under the direct superintendence of the higher courts. Functions and jurisdiction of each court depend upon its judicial and structural hierarchy. The chart below shows the hierarchy of judiciary:

With the hierarchy from top level to bottom level, the jurisdiction and capability of punishment changes at every level and in every court.

SUPREME COURT

The Supreme court of India was inaugurated on January 28, 1950. It has replaced the British Privy Council as the highest court of appeal. Articles 124 to 147 in part V of the Constitution deals with the organization, independence, jurisdiction, powers, procedures and so on of the Supreme Court.

At present, it consists of 31 judges (1 chief justice and 30 other judges). Originally the strength of supreme court was fixed at 8 (1 chief justice and 7 other judges).

The constitution declares Delhi as the seat of the Supreme Court but, also authorizes the Chief Justice of India to appoint other place or places as seat of supreme court. (only with the approval of president). No court can give any direction either to President or Chief Justice to appoint any other Place as the seat of Supreme Court.

Supreme Court is the apex court and the decisions of supreme court are binding upon all other subordinate courts over the country. It has been assigned a very significant role in Indian democratic political system.

It is a federal court, highest court of appeal, the guarantor of fundamental rights and guardian of the Constitution. Therefore, its independence becomes very essential for effective discharge of duties.

Supreme Court should be free from the encroachments, pressure and interferences of executive and legislature. Justice without fear or favour. Provisions made to safeguard the independence of supreme court are as follows:

1. Mode of Appointment- judges appointed by president with consultation of judicial members.
2. Security of Tenure- judges can be removed by president only in manner on grounds mentioned in Constitution.
3. Fixed Service Conditions- salaries, allowances, leave, pension of judges determined time to time by parliament.
4. Expenses Charged on Consolidated Fund- salaries, allowances and others are charged on consolidated fund of India.
5. Conduct of Judges Cannot be Discussed- prohibits discussions in parliament or state legislature.
6. Ban on Practice After Retirement.
7. Power to Punish for its Contempt- to maintain authority, dignity and honour.
8. Freedom to Appoint its Staff
9. Its Jurisdiction Cannot be Curtailed- parliament cannot curtail any jurisdiction of supreme court.
10. Separation from Executive- executive authorities should not possess judicial powers.

JURISDICTION AND POWERS OF SUPREME COURT

Constitution has conferred a very extensive jurisdiction and vast powers on Supreme Court. It is the final court of appeal. Alladi Krishnaswamy Ayyar a member of drafting committee of Constitution remarked “supreme court of India have is powerful more than any of supreme court of the world.”

Jurisdiction of supreme court is classified as follows:

ORIGINAL JURISDICTION

Supreme court decides the disputes between different units of the Indian Federation. Any dispute between; the centre and 1 or more states; the centre and any state or states on one side and 1 or more states on other side; or between 2 or more states.

Exclusive means authority to determine a case which no other court can hear or determine and original means authority to hear and determine the case in first instance

With regards to exclusive original jurisdiction [Article 131] two points are to kept into consideration:

1. The dispute must involve a question (whether a fact or a law)
2. Any suit brought by private citizen against centre or state cannot be entertained under this. Further disputes excluded.

Article 131 does not include treaty, agreement, covenant etc. executed before the commencement of constitution.

Parliament may by law exclude jurisdiction of supreme court in state disputes on use, distribution or control of waters of any inter State river- Article 262

WRIT JURISDICTION

The constitution has constituted the supreme court as the guarantor of fundamental rights of the citizens. Article 32 [right to constitutional remedies] ensures the same. The supreme court is empowered to issue writs including Habeas Corpus (to have body of), Mandamus (we command), Prohibition (to forbid), Certiorari (to be certified or informed), Quo- Warranto (by what authority or warrant) for the enforcement of the fundamental rights of a citizen. However, the writ jurisdiction of supreme court is not exclusive.

High courts are also empowered to issue writs for the same purpose. Also, the writ jurisdiction of supreme court is lower than the writ jurisdiction of high court. High court have the power to issue writ not only for fundamental rights but for other purposes too.

Supreme court can issue writ only for the violation of fundamental rights of a citizen.

APPELLATE JURISDICTION

The supreme court is primarily a court of appeals and hears appeals against the judgement of lower courts. It enjoys a wide appellate jurisdiction which can be classified under four heads.

1. Appeals in constitutional matters: appeal can be against the decision of high court if the high court certifies that the case involves a substantial question of law that requires interpretation of constitution, on the grounds of it has been wrongly decided.
2. Appeals in civil matters: an appeal lies from any judgement of a high court if the high court certifies- i) case involves question of law of general importance.

ii) question needs to be decided by supreme court.

1. Criminal matters: appeals against the judgment of criminal proceeding in high court is heard if the high court: i) has on appeal reversed an order of acquittal of an accused and sentenced him to death.
   1. has taken before any case from any subordinate court and convicted the accused person and sentenced to death.
   2. certifies that the case is a fit one for the appeal of supreme court.
2. Appeal by special leave: authorized to grant on its discretion special leave to appeal from any judgement in matter passed by the court or tribunal in the country (except military tribunal and court martial). It is a discretionary power and hence, cannot be claimed as a matter of right. It can be granted in any judgement whether final or interlocutory. It may be related to any matter and can be granted against any court or tribunal and not necessarily against a high court. Thus, the scope of provision is very wide and vests in supreme court with a plenary jurisdiction.

ADVISORY JURISDCITION

Article 143 of Indian Constitution authorizes president to seek the opinion of supreme court in the two categories of matters:

In both the cases, the opinion expressed by the supreme court is only advisory and not a judicial pronouncement. Hence, it is not binding on the president. It facilitates the government to have an

authoritative legal opinion on a matter to be decided by it. President has made 15 references to the supreme court. Also known as consultative jurisdiction.

A COURT OF RECORD

Supreme court has two powers:

Contempt of court maybe civil or criminal. Civil contempt means wilful disobedience to any judgement, order, writ or other process of a court or wilful breach of an undertaking given to a court. Criminal contempt means the publication of any matter or doing any act which- i) scandalizes or lowers the authority of court or; ii) prejudices or interferes with the due course of judicial proceedings; iii) interferes or obstructs the administration of justice in any other manner.

POWER OF JUDICIAL REVIEW

Power of supreme court to examine the constitutionality of legislative enactments and executive orders of both the central and state governments. On examination, if they are found to be violative of the constitution [ultra-vires], they can be declared as illegal, unconstitutional and invalid [null & void] by supreme court. Consequently, they cannot be enforced by government.

OTHER POWERS

1. Decides the disputes regarding the election of president and vice-president.
2. Enquires into the conduct and behavior of the chairman and members of Union Public Service Commission.
3. Review its own judgement or order.
4. Authorized to withdraw the cases pending before high courts and dispose them itself.
5. Its law binding on all courts in India.
6. Power of judicial superintendence and control all over courts and tribunals functioning in country.

HIGH COURT

The institution of high court originated in India in 1862 when the high courts were set up at Calcutta, Bombay, Madras. In 1866, a fourth high court was established at Allahabad. After 1950, a high court existing in a province became the high court for the corresponding state. The constitution of India

provides for a high court of each state, but the 7^th amendment act of 1956 authorized the parliament to establish a common high court for 2 or more states and a union territory. Territorial jurisdiction of a high court is co-terminus with the territory of a state.

Articles 214 to 231 in part VI of the constitution deal with organization, independence, jurisdiction, powers, procedures and so on of high court. Every high court consists of a chief justice and such other judges as the president may from time to time deem necessary to appoint.

Independence of high court is very essential for the effective discharge of the duties assigned to it. Following provisions are made by constitution to safeguard impartial functioning:

1. Mode of appointment: by president
2. Security of tenure
3. Fixed Service Conditions
4. Expenses charged on consolidated Fund
5. Conduct of judges cannot be discussed
6. Ban on practice after retirement
7. Power to punish for contempt
8. Freedom to appoint its staff
9. Its jurisdiction cannot be curtailed
10. Separation from executive

JURISDICTION AND POWERS OF HIGH COURT

High court is the highest court of appeal in the state. It is the protector of fundamental rights and has power to interpret the constitution. Besides, it has supervisory and consultative roles.

Constitution only lays down that the jurisdiction and powers of a high court are to be same as immediately before the commencement of constitution. High court have jurisdiction over revenue matters. At present, a high court enjoys the following jurisdiction and powers:

ORIGINAL JURISDICTION

It means the power of high court to hear disputes in the first instance, not by the way of appeal. It extends to the following:

• 1. Matters of admirality, will, marriage, divorce, company laws and contempt of law.
  2. Disputes relating to the election of members of parliament.
  3. Regarding revenue matter.
  4. Enforcement of fundamental rights of citizens.
  5. Cases ordered to be transferred from subordinate courts.
  6. 4 high courts have original civil jurisdiction in cases of higher value.

WRIT JURISDICTION

Article 226 of Indian Constitution empowers a high court to issue writs including habeas corpus, mandamus, certiorari, prohibition and quo-warranto for fundamental rights and for any other purpose. (enforcement of any ordinary legal right).

High court can issue writ to any person, authority and government not only within its territorial jurisdiction but also outside of its territorial jurisdiction if the cause of action arises within its territorial jurisdiction.

The writ jurisdiction of high court is not exclusive but concurrent with the writ jurisdiction of supreme court. Also, the writ jurisdiction of high court is wider than that of supreme court

APPELLATE JURISDICTION

High court hears appeal against the judgement of subordinate courts functioning in its territorial jurisdiction. It has appellate jurisdiction in both CIVIL and CRIMINAL CASES.

In civil matters, 4 types of appeals can be made;

SUPERVISORY JURISDICTION

A high court has the power of superintendence over the courts and tribunals functioning in its territorial jurisdiction (except military courts or tribunals). Thus, it may –

1. Call for returns from them
2. Make and issue, general rules and prescribe forms for regulating the practice and proceedings of them.
3. Prescribe forms in which books, entries and accounts are to be kept by them.
4. Settle the fees payable to the sheriff, clerks, officers and legal practitioners of them.

This power of high court is very broad as it extends to all courts and tribunals whether they are subject to appellate jurisdiction of high court or not, it also covers judicial superintendence with administrative one and is a revisional jurisdiction. It can be suo-motu (on its own).

However, this power does not vest with unlimited authority and has to be used only in appropriate cases.

CONTROL OVER SUBORDINATE COURTS

High court of a state has an administrative control and other powers over subordinate courts. It includes the following:

1. It is consulted by the governor in the matters of appointment, posting, promotion of district judges.
2. It deals with the matter of posting, promotion, grant of leave, transfers and discipline of the members of judicial service of the state.
3. It can withdraw a case pending in subordinate court if it involves question of law.
4. Its law is binding on all subordinate courts functioning within its territorial jurisdiction.

A COURT OF RECORD

As a court of record, high court has 2 powers:

POWER OF JUDICIAL REVIEW

Power of a high court to examine the constitutionality of legislative enactments and executive orders of both the central and state governments. On examination, if found to violative to constitution they can be declared as illegal, unconstitutional and invalid by the high court.

Though the phase judicial review has no where been used in the constitution, the provisions of Article 13 to 226 explicitly confer the power of judicial review on high court. The constitutional validity can be challenged on 3 grounds as follows:

DISTRICT AND SUBORDINATE COURTS

The district court in each district is that of the District and Sessions Judge – Principal court of original civil jurisdiction besides the high court of State. The district court or additional district court exercises jurisdiction both on original side and appellate side in civil and criminal matters arising in district.

District Judge in each district is the in charge of administration of justice in a district.

The territorial and pecuniary jurisdiction in civil matters is usually set in concerned state enactments on the subject of civil courts.

On criminal side, jurisdiction is exclusively derived from Criminal Procedure Code. District court is also Court of Sessions when it exercises its jurisdiction on criminal matters under Criminal Procedure Code.

District court have appellate jurisdiction over all subordinate courts in district over both civil and criminal matters.

TRIBUNALS

The 42^nd amendment act of 1976 added a new part XIV-A to the Constitution. This part is entitled as

‘TRIBUNALS’ and consists of only two articles they are as follows:

• Article 323 A – dealing with administrative tribunals
• Article 323 B – dealing with tribunals of other matters

ADMINISTRATIVE TRIBUNALS

Article 332 A empowers the parliament to provide for the establishment of administrative tribunals for the adjudication od disputes relating to recruitment and conditions of service of a persons appointed to public services of the centre, state, local bodies, public corporations and other public authorities. Parliament has passed the Administrative Tribunals Act in 1985.

CENTRAL ADMINISTRATIVE TRIBUNAL: (CAT)

It was set up in 1985 with the principal bench at Delhi and additional benches in different states.

The CAT exercises original jurisdiction in relation to recruitment and all service matters of public servants covered by it. Its jurisdiction extends to all – India services, central services, civil services, civil posts under the centre and civilian employees of defence services.

It is a multi – member body consisting of a chairman and members. At present the strength of members is 65 and 1 Chairman. CAT is bound by the procedure laid down in the Civil Procedure Code of 1908. It is guided by principles of natural justice.

Principles keep it flexible in approach. Currently it is not possible for an aggrieved public servant to approach the supreme court directly without going through the concerned high court.

STATE ADMINISTRATIVE TRIBUNALS

The Administrative Tribunals Act, 1985 empowers the central government to establish State Administrative Tribunals (SATs) on specific request of the concerned state governments. By 2016 SATs have been set up in 9 states. The chairman and members of the SATs are appointed by the president after consultation with governor of state concerned.

It exercises original jurisdiction in relation to recruitment and all service matters of state government employees. The act also makes a provision for setting up of joint administrative tribunal (JAT) for two or more states. JAT exercises all the jurisdiction and powers exercisable by the administrative tribunals for such states.

TRIBUNALS FOR OTHER MATTERS

Under Article 323 – B, the parliament and the state legislatures are authorized to provide for the establishment of tribunals for adjudication of disputes relating to following matters:

CENTRAL BUREAU OF INVESTIGATION

The Central Bureau of Investigation (CBI) was set up in 1963 by a resolution of the Ministry of Home Affairs. Later, it was transferred to the Ministry of Personnel and now it enjoys the status of an attached file. The establishment of CBI was recommended by the SANTHANAM COMMITTEE on prevention of corruption.

It derives its powers from the Delhi Special Police establishment act, 1946. CBI is main investigating agency of the Central Government. It plays an important role in the prevention of corruption and maintaining integrity in administration. It also provides assistance to Central Vigilance Commission and Lokpal.

MOTTO, MISSION AND VISION OF CBI

Motto: industry, impartiality, integrity

Mission: to uphold the constitution of India and law of the land through in depth investigation and successful prosecution of offences; to provide leadership and direction to police forces and to act as the nodal agency for enhancing inter – state and international cooperation in law enforcement.

CBI focus on:

ORGANISATION OF CBI

At present, the CBI has following divisions:

• Anti – corruption Division
• Economic Offences Division
• Special Crimes Division
• Policy and International Police Cooperation
• Administration Division
• Directorate of Prosecution
• Central Forensic Science Laboratory

FUNCTIONS OF CBI

The functions of CBI are as follows:

CBI is multidisciplinary investigation agency of government of India and undertakes investigation of corruption related cases, economic offences and cases of conventional crimes like murder, kidnapping, rape etc. on reference from the state governments or when directed by Supreme Court/ High Courts. CBI acts as “National Central Bureau” of Interpol in India.

The CBI is required to obtain the prior approval of the Central Government before conducting any inquiry or investigation into an offence committed by officers of the rank of joint secretary and above in the Central Government and its authorities.

However, on May 6, 2014, the supreme court held as invalid the legal provision that makes prior sanction mandatory for central bureau of investigation to conduct a probe against senior bureaucrats in corruption cases under the prevention of corruption act.

JUVENILE COURT

The word “juvenile” originates in a Latin word “juvenis” that means a young. A juvenile or child means a person who has not completed 18 years of age. Children are greatest national resource but around the years, participation of children in illegal act is increasing effortlessly.

Juvenile crime, formally known as juvenile delinquency, is a term that defines the participation of a minor in an illegal act; juvenile justice is a legal system that aspires to protect all children bringing within its ambit “the children in need of protection”, besides those in conflict of law.

CAUSES OF JUVENILE CRIMES

1. Biological causes such as speech hearing problems etc.
2. Socio – Environmental causes
3. Mobility
4. Cultural conflicts
5. Family background
6. Family structure
7. Broken homes (mentally or socially)
8. Parent – child relationship
9. Socio – economic condition
10. Psychological factors
11. Others: such as bad company, revenge factor, poor literacy rate, over exposure to media, lack of values, cheap literature, mental conflicts.

After Nirbhaya Case, more measures are adopted in India for developing better juvenile structure and environment. Juvenile Justice Care and Protection, 2015 came into existence in India. Principles of juvenile justice care and protection act includes principles of:

SPECIAL COURT

A special court is one which is to deal with special types of cases under a shortened and simplified procedure. They are established under a statute meant to address specific falling within that statute. Over more than 25 special courts are set up until 2015.

Special courts have existed in subordinate judiciary since before independence. Special courts are a significant means of addressing the specificities of certain statutes and judicial backlog.

The special courts case clearly uses the phase “established under statute” meaning establishment of new court.

Supreme court should address the constitutional status, and analyse policy questions pertaining to the need and efficiency of special courts.