Dr KAR [SVD SIDDHARTHA LAW COLLEGE, VIJAYAWADA]

JUDICIAL CONTROL OF ADMINISTRATIVE POWERS

UNIT I: JUDICIAL REVIEW IN INDIA

I. Historical development
II. Powers of the Supreme Court
III. Powers of the High Court
IV. Role of subordinate judiciary
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Introduction
I. Historical development
Rule of law in Ancient India
i. Judicial system in Ancient India
Hierarchy of courts in Ancient India
Quality of the Judiciary: Integrity
Punishment for corruption
Jurors
Interpretation of the Text of the law
Changing customs: Changing laws
Evolutionary concept of law
Mode of Proof (Law of Evidence)
Discovery of truth is real test
Administrative Courts
Administrative Code
ii. Judicial System in Medieval India
iii. Judicial System in modern India
i. Pre-Independent Era
A. First Phase
B. Second Phase
C. Third Phase
D. Fourth Phase
E. Fifth Phase
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F. Sixth Phase
ii. Post-Independence Era
Modern judicial system and hierarchy of Courts
Structure of Judiciary
II. The Supreme Court
Supreme Court Building
Mother and Child
Dharma chakra logo of the Supreme Court
Appointment of Judges of the Supreme Court
What is the Controversy over Consultation and Evolution of Collegium system?
What is Collegium System?
Who Heads the Collegium System?
What is the Working of the Collegium System and The National Judicial Appointments
Commission?
What are the Qualifications Required for the Appointment of Judges?
What are the Oaths or Affirmations?
What is the Tenure of Judges?
How does the Removal of Judges take place?
How are Salaries and Allowances Determined?
Why is it Important for the SC to be Independent?
What are Jurisdiction and Powers of Supreme Court?
- What is Original Jurisdiction?
- What is Writ Jurisdiction?
- What is Appellate Jurisdiction?
- What is Advisory Jurisdiction?
- What is a Court of Record?
- What is the Power of Judicial Review?
- What are the recent issues in Supreme Court?
Master of Roster

III. High Courts

- Qualifications and Tenure
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- Appointment of judges of High Courts

- Functions of a High Court
- Jurisdiction of a High Court
Original jurisdiction
Appellate jurisdiction
Writ jurisdiction
Supervisory jurisdiction
Review jurisdiction
Important Terms related to High Courts in India

IV. Subordinate Courts

- The District Courts
- Tribunal
- Nyay Panchayats
- Lok Adalat

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Introduction
Though India has feature of parliamentary form of government, Indian parliament is not a
sovereign law (Absolute) making body like in English law. The ‘doctrine of separation of
powers’ between legislature, executive and judiciary recognized by Indian Constitution
expressively but it is not so rigid and strict senses of implementation how in USA. Because of
written constitution and checks and balance by one organ on other in USA there is a
possibility for judiciary to declare legislative and executive activities as unconstitutional it
given rise to judicial supremacy. However, it is notable to say that present Indian
Constitution is unique blend of American and British Constitution. It is owing to this reason
that our constitutional system “wonderfully adopts the via media between the American
system of judicial supremacy and the English principle of parliamentary supremacy”. India
has written constitution and has a democratic federal constitution, which is the supreme law of
land and all other laws are subject to this supreme law. Judicial Review is one of the cardinal

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features of Indian Constitutional system. India has constitutional and limited democracy
which imposes limitations on the power of the government on majority rule to avoid tyranny
and arbitrariness and to uphold constitutional values like rule of law. It is because of
development of the legal system in India.
The study of legal history or Judicial system consists of the chronological development and
growth of a legal system which, in other words means, an analysis of the system of judicial
administration prevailing in a particular country in its historical perspective. It is well known
that the efficacy of judicial system, by and large, depends upon two major considerations,
namely, the existence of a definite hierarchy of courts which follow a simple procedure and a
well defined system of law which are uniformly applicable throughout the country. Thus
‘Courts’ and ‘Laws’ are the two very important instruments of justice. It is only through the
execution of good laws that impartiality in administration of justice can be maintained.
Therefore, the subject of legal history of Indian Judicial System mainly deals with the process
of gradual evolution and development of “Courts” and “laws” in a chronological order. It has
been rightly said that ‘law’ is a dynamic concept which changes from time to time and place
to place to suit the needs and conditions of a given society which is constantly changing and
developing with the advancement of human knowledge and civilisation. The history of human
society tells us that “the roots of the present, lie in the past.” So, is also the case with the legal
institutions. The Courts and laws which we have today, have taken the present shape after
years of experimentation and planning. Therefore, in order to appreciate the present judicial
system in India, it becomes necessary to probe into the past history of its evolution and
development.

III. Historical development

History comprises of the growth, evolution and development of the legal system in the
country and sets forth the historical process whereby a legal system has come to be what it is
over time. The legal system of a country at a given time is not the creation of one man or of
one day but is the cumulative fruit of the endeavor, experience, thoughtful planning and
patient labour of a large number of people through generations.
With the coming of the British to India, the legal system of India changed from what it was in
the Ancient and the Mughal period where mainly Hindu Dharma and Islamic Law was
followed. The legal system currently in India bears a very close resemblance to what the
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British left us with. As per the needs of the changing times changes and amendments were
made, but the procedure which is followed not has its roots in the era of British-India.
It is evident from ancient literature that the Indian jurisprudence was found on the rule of
law; that the King himself was subject to the law; that arbitrary power was unknown to Indian
political theory and jurisprudence and the kind’s right to govern was subject to the fulfillment
of duties the breach of which resulted in forfeiture of kingship; that the judges were
independent and subject only to the law; that ancient India had the highest standard of any
nation of antiquity as regards the ability, learning, integrity, impartiality, and independence of
the judiciary, and these standards have not been surpassed till today ; that the Indian judiciary
consisted of a hierarchy of judges with the Court of the Chief Justice (Praadvivaka) at the top,
each higher Court being invested with the power to review the decision of the Courts below ;
that disputes were decided essentially in accordance with the same principles of natural justice
which govern the judicial process in the modern State today: that the rules of procedure and
evidence were similar to those followed today ; that supernatural modes of proof like the
ordeal were discourage ; that in criminal trials the accused could not be punished unless his
guilt was proved according to law ; that in civil cases the trial consisted of four stages like any
modern trial – plaint, reply, hearing and decree ; that such doctrines as res judicata (prang
nyaya) were familiar to Indian jurisprudence ; that all trials, civil or criminal, were heard by a
bench of several judges and rarely by a judge sitting singly ; that the decrees of all courts
except the King were subject to appeal or review according to fixed principles ; that the
fundamental duty of the Court was to do justice "without favour or fear”.

Rule of law in Ancient India

It is the question before us that was there a rule of law in ancient India?
Let the texts speak for themselves………………………
In the Mahabharata, it was laid down “A King who after having sworn that he shall protect
his subjects’ fails to protect them should be executed like a mad dog." "The people should
execute a king who does not protect them, but deprives them of their property and assets and
who takes no advice or guidance from any one. Such a king is not a king but misfortune."
These provisions indicate that sovereignty was based on an implied social compact and if the
King violated the traditional pact, he forfeited his kingship.

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Coming to the historical times of Mauryan Empire, Kautilya describes the duties of a king
in the Arth-shastra thus : "In the happiness of his subjects lies the King’s happiness; in their
welfare his welfare; whatever pleases him he shall not consider as good, but whether pleases
his people he shall consider to good." The Principle enunciated by Kautilya was based on a
very ancient tradition which was already established in the age of the Ramayana. Rama, the
King of Ayodhya, was compelled to banish his queen, whom he loved and in whose chastity
he had comlete faith, simply because his subjects disapproved of his having taken back a wife
who had spent a year in the house of her abductor. The king submitted to the will of people
though it broke his heart.
In the Mahabharata it is related that a common fisherman refused to give his daughter in
marriage to the King of Hastinapur unless he accepted the condition that his daughter’s sons
and not the heir apparent from a former queen would succeed to the throne. The renunciation
of the throne and the vow of life-long celibacy (Bhishma Pratgyan) by Prince Deva Vrata is
one of the most moving episodes in the Mahabharata.6 But its significance for jurists is that
even the sovereign was not above the law. The great King of Hastinapur could not compel the
humblest of his subjects to give his daughter in marriage to him without accepting his terms.
It refutes the view that the kings in ancient India were "Oriental despots" who could do what
they liked regardless of the law or the rights of their subjects.

i. Judicial system in Ancient India

According to the Artha-shastra of Kautilya, who is generally recognised as the Prime Minister
of the first Maurya Emperor (322-298 B.C.), the realm was divided into administrative units
called Sthaniya, Dronamukha, Khrvatika and Sangrahana (the ancient equivalents of the
modern districts, tehsils and Parganas). Sthaniya was a fortress established in the center of
eight hundred villages, a dronamukha in the midst of 400 villages, a kharvatika in the midst of
200 villages and a sangrahana in the center of ten villages, Law courts were established in
each sangrahana, and also at the meeting places of districts (Janapadasandhishu). The Court
consisted of three jurists (dhramastha) and three ministers (amatya).
This suggests the existence of circuit courts, for it is hardly likely that three ministers were
permanently posted in each district of the realm. The great jurists, Manu, Yajn-valkya,
Katyayana, Brihaspati and others, and in later times commentators like Vachaspati Misra and

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others, described in detail the judicial system and legal procedure which prevailed in India
from ancient times till the close of the Middle Ages.

Hierarchy of courts in Ancient India

According to Brihaspati Smiriti, there was a hierarchy of courts in Ancient India beginning
with the family Courts and ending with the King. The lowest was the family arbitrator. The
next higher court was that of the judge; the next of the Chief Justice who was called
Praadivivaka, or adhyaksha; and at the top was the King’s court. The jurisdiction of each was
determined by the importance of the dispute, the minor disputes being decided by the lowest
court and the most important by the king. The decision of each higher Court superseded that
of the court below.
According to Vachaspati Misra, "The binding effect of the decisions of these tribunals,
ending with that of the king, is in the ascending order, and each following decision shall
prevail against the preceding one because of the higher degree of learning and knowledge". It
is noteworthy that the Indian judiciary today also consists of a hierarchy of courts organized
on a similar principle-the village courts, the Munsif, the Civil Judge, the District Judge, the
High Court, and finally the Supreme Court which takes the place of the King’s Court.
We are following an ancient tradition without being conscious of it.
The institution of family judges is noteworthy. The unit of society was the joint family which
might consist of four generations. Consequently, the number of the member of a joint family
at any given time could be very large and it was necessary to settle their disputes with
firmness combined with sympathy and tact. It was also desirable that disputes should be
decided in the first instance by an arbitrator within the family. Modern Japan has a somewhat
similar system of family Courts. The significance of the family courts is that the judicial
system had its roots in the social system which explains its success. The fountain source of
justice was the sovereign. In Indian jurisprudence dispensing justice and awarding
punishment was one of the primary attributes of sovereignty. Being the fountain source of
justice, in the beginning the king was expected to administer justice in person, but strictly
according to law, and under the guidance of judges learned in law. A very strict code of
judicial conduct was prescribed for the king. He was required to decide cases in open trial and
in the court-room, and his dress and demeanour were to be such as not to overawe the

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litigants. He was required to take the oath of impartiality, and decide cases without bias or
attachment.
Says Katyayana: "The king should enter the court-room modestly dressed, take his seat facing
east, and with an attentive mind hear the suits of his litigants. He should act under the
guidance of his Chief Justice (Praadvivaka), judges, ministers and the Brahmana members of
his council. A king who dispenses justice in this manner and according to law resides in
heaven". These provisions are significant. The king was required to be modestly dressed
(vineeta-vesha) so that the litigants were not intimidated. The code of conduct prescribed for
the king when acting as a judge was very strict and he was required to be free from all
"attachment or prejudice".
Says Narada: "If a king disposes of law suits (vyavaharan) in accordance with law and is self-
restrained ( in court), in him the seven virtues meet like seven flames in the fire" Narada
enjoins that when the king occupies the judgment seat (dharmasanam), he must be impartial to
all beings, having taken the oath of the son of Vivasvan. (The oath of Vivasvan is the oath of
impartiality: the son of Vivasvan is Yama, the god of death, who is impartial to all living
beings). The King’s Judges The judges and counselors guiding the king during the trial of a
case were required to be independent and fearless and prevent him from committing any error
or injustice.
Says Katyayana: "If the king wants to inflict upon the litigants (vivadinam) an illegal or
unrighteous decision, it is the duty of the judge (samya) to warn the king and prevent him.”
"The judge guiding the king must give his opinion which he considers to be according to law,
if the king does not listen, the judge at least has done his duty. When the judge realizes that
the king has deviated from equity and justice, his duty is not to please the king for this is no
occasion for soft speech (vaktavyam tat priyam natra); if the judge fails in his duty, he is
guilty." Delegation of Judicial power by the King As civilization advanced, the king’s
functions became more numerous and he had less and less time to hear suits in person, and
was compelled to delegate more and more of his judicial function to professional judges.
Katyayana says: "If due to pressure of work, the king cannot hear suits in person he should
appoint as a judge a Brahmin learned in the Vedas." The qualifications prescribed for a judge
were very high. According to Katyayana; "A judge should be austere and restrained, impartial
in temperament, steadfast, God-fearing, assiduous in his duties, free from anger, leading a
righteous life, and of good family. In course of time, a judicial hierarchy was created which
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relieved the king of much of the judicial work, but leaving untouched his powers as the
highest court of appeal. Under the Maurya Empire a regular judicial service existed as
described above.

Quality of the Judiciary: Integrity

The foremost duty of a judge was integrity which included impartiality and a total absence of
bias or attachment. The concept of integrity was given a very wide meaning and the judicial
code of integrity was very strict. Every Smriti emphasizes the supreme importance of judicial
integrity. Shukra-nitisara says: "The judges appointed by the king should be well versed in
procedure, wise, of good character and temperament, soft in speech, impartial to friend or foe,
truthful, learned in law, active (not lazy), free from anger, greed, or desire (for personal gain),
and truthful."
Says Brihaspati: "A judge should decide cases without any consideration of personal gain or
any kind of personal bias; and his decision should be in accordance with the procedure
prescribed by the texts. A judge who performs his judicial duties in this manner achieves the
same spiritual merit as a person performing a Yajna." The strictest precautions were taken to
ensure the impartiality of judges. A trial had to be in open court and judges were forbidden to
talk to the parties privately while the suit was pending because it was recognised that a private
hearing may lead to partiality (pakshapat).
Shukra-nitisara says: "Five causes destroy impartiality and lead to judges taking sides in
disputes. There are attachment, greed, fear, enmity, and hearing a party in private." Another
safeguard of judicial integrity was that suits could not be heard by a single judge, even if he
was the king. Our ancients realized that when two minds confer, there is less chance of
corruption or error, and they provided that the King must sit with his counselors when
deciding cases, and judges must sit in benches of uneven numbers. Shukra-nitisara enjoined
that "Persons entrusted with judicial duties should be learned in the Vedas, wise in worldly
experience and should function in groups of three, five, or seven." Kautilya also enjoined that
suits should be heard by three judges (dharmasthstrayah). Our present judicial system, created
by the British, does not follow this excellent safeguard. From this it is so clear that the state in
ancient India was more interested in the quality of justice than economy.

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Punishment for corruption

Corruption was regarded as a heinous offence and all the authorities are unanimous in
prescribing the severest punishment on a dishonest judge. Brihaspati says: "A judge should be
banished from the realm if he takes bribes and thereby perpetrates injustice and betrays the
confidence reposed in him by a trusting public." A corrupt judge, a false witness, and the
murderer of a Brahmin are in the same class of criminals. Vishnu says: "The state should
confiscate the entire property of a judge who is corrupt." Judicial misconduct included
conversing with litigants in private during the pendency of a trial. Brihaspati says: "A judge or
chief justice (Praadvivaka) who privately converses with a party before the case has been
decided (anirnite), is to be punished like a corrupt judge."

Jurors
The most noteworthy feature of the judicial system was the institution of sabhasada or
councilors who acted as assessors or adviser of the King. They were the equivalent of the
modern jury, with one important difference. Yajanvalkya enjoins: "The Sovereign should
appoint as assessors of his court persons who are well versed in the literature of the law,
truthful, and by temperament capable of complete impartiality between friend and foe."
These assessors or jurors were required to express their opinion without fear, even to the point
of disagreeing with the Sovereign and warning him that his own opinion was contrary to law
and equity. Katyayana says: ‘The assessors should not look on when they perceive the
Sovereign inclined to decide a dispute in violation of the law; if they keep silent they will go
to hell accompanied by the King." The same injunction is repeated in an identical verse in
Shukr-nitisara. The Sovereign-or the presiding judge in his absence-was not expected to
overrule the verdict of the jurors; on the contrary he was to pass a decree (Jaya-patra) in
accordance with their advice. Shukr-nitisara says: " The King after observing that the
assessors have given their verdict should award the successful party a decree (Jaya-patra)."
Their status may be compared to the Judicial Committee of the Privy Council which "humbly
advise" their Sovereign, but their advice is binding. It may also be compared to the peoples’
assessors under the Soviet judicial system who sit with the professional judge in the Peoples’
Court but are equal in status to him and can overrule him.
But there was one exception. If in a difficult case the jurors were unable to come to a
conclusion, the Sovereign could decide the matter himself. Shukra-nitisara says, "If they (the
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assessors) are unable to decide a dispute because it raises difficult or doubtful issues
(sandigdha-roopinah), in such a case the Sovereign may decide in the exercise of his
Sovereign privilege.

Interpretation of the Text of the law

Principles of interpretation were developed to high degree of perfection. Judges were required
to decide cases, criminal and civil, according to law (samyak, yath-shastram, shastro ditena
vidhina). This involved interpretation of the written text of the law-a task which created many
problems such as the elucidation of obscure words and phrases in the text, reconciliation of
conflicting provisions in the same law, solution of conflict between the letter of the law and
principles of equity, justice and good conscience, adjustment of custom and smritis, and so
on. This branch of law was highly developed and a number of principles were enunciated for
the guidance of the courts. The most important of them related to the conflict between the
dharm-shastra and the artha-shastra. Three systems of substantive law were recognized by the
court, the dharma-shastra, the arth-shastra, and custom which was called sadachara or
charitra. The first consisted of laws which derived their ultimate sanction from the smritis and
the second of principles of government. The bordr line between the two often overlapped. But
the real distinction between the smritis and arth-shastra is uniformaly secular, but that of the
dharma-shastra not always so. IN fact so remarkably secular is the arth-shastra in its approach
to the problems of government that this has induced some writers to advance the theory that
the artha-shastra (literal meaning: the science of ‘artha’ or pursuit of material welfare), did not
evolve from the dharma-shastra but had an independent origin and developed parallel to it.
Whatever their respective origins, in several matters the arthashastra and the dharma-shastra
are in conflict. How did the law courts resolve this conflict when it arose in particular suits?
The first principle was that of avirodha: the court must try to resolve any apparent conflict
between the two. (This is called the principle of harmonious construction today. But if the
conflict could not be resolved, the authority of the dharma-shastra was to be preferred.
Bhavishya purana provides : "whens mriti and artha-shastra are inconsistent, the provision in
the artha-shastra is superseded (by smriti); but if two smritis, or two provision in the same
smriti are in conflict, whichever is in accordance with equity is to be preferred." Narada smriti
lays down a similar rule of interpretation according to reason in case of conflict between two
texts of the smritis.
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But while interpreting the written text of the law, the court was to bear in mind that its
fundamental duty was to do justice and not to follow the letter of the law. Brihaspati enjoined:
" The court should not give its decision by merely following the letter of the shastra for if the
decision is completely devoid of reasoning, the result is injustice (dharma-hani)." Brihastpati
further says that the court should decide according to the customs and usages of the country
even if they are in conflict with the letter of the law; and he gives several remarkable
illustrations which incidentally throw a flood of light on contemporary social conditions. He
points out that the maternal uncle’s daughter is accepted in marriage by brahmanas of the
south; in Madhya desha (Central India), brahmanas become hired labourers and craftmen and
eat cow’s flesh; eastern brahmanas eat fish and their women are addicted to drinking and can
be touched by men even when in their monthly courses. On account of the acts specified these
communities, in their respective countries, should not be liable to undergo penance incur
judicial punishment.

Changing customs: Changing laws

In view of the vital part played by custom (achara, sadachara, charitra ) in society, the State
was required to maintain an authenticated record of the customs observed in the various parts
of the country. Katyayana enjoins: "Whatever custom is proved to be followed in any
particular region, it should be duly recorded as established (dharya) in a record stamped with
the seal of the Sovereign." But even an established custom could be formally "disestablished"
if in course of time it became inequitable. In fact, it was the duty of the Sovereign to remove
from time to time the dead or rotten branches of custom. Katyanana enjoined: "When the
Soverign is satisfied that a particular custom is contrary to equity (nyayatah) in the same way-
that is in the way it was established- it should be annulled by a formal decision of the
Sovereign." This remarkable provision indicates how highly developed was the judicial and
legal system of ancient India. The state was required to keep an authenticated record of all
valid customs prevailing in the different regions of the realm. Very often the decision in a suit
depended on proof of the existence of a custom.
Narada says, "The basis of a judicial decision (vyavahara) may be: (i) Dharma-shastra, (ii)
(previous) judicial decisions (vyavahara) or custom (charitra) or the decrees of the Soverign.
The authority of these four is in the reverse order, each preceding one being superseded by the
one following it. The artha-shastra contains an indentical provision.
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Evolutionary concept of law

The significance of these provisions cannot be overemphasized. By gearing law to changing
customs Indian jurisprudence gave the concept of law a secular content. Moreover, it
developed the evolutionary concept of law and rejected the concept of an absolute, eternal,
never-chaning law. Both Manu and Parashara say: "The laws of kritayuga are different from
those of treat and dwapara, and the laws of kali yuga are different from those of all the
previous; ages- the laws of each age being according to the distinctive character of each age
(yuga roopanusaratah)."

Mode of Proof (Law of Evidence)

The law of evidence (the mode of proof) is an index of the quality of a judicial system. In this
respect, the Indian judicial system was in advance of any other system of antiquity. In ancient
societies proof by supernatural devices, such as trial by ordeal, was quite common. In England
it prevailed till the very close of the middle ages. But our judicial system prohibited resort to
supernatural devices, if oral or documentary evidence was available.

Discovery of truth is real test

The real test of any judicial system is that it should enable the law courts to discover the truth,
and that of ancient India stands high under this test. "In disputes the Court has to ascertain
what is true and what is false from the witnesses," enjoins Gautam.49 All available evidence
indicates that in ancient India bearing false witness was viewed with great abhorrence. All the
foreign travelers from Megasthenes in the 3rd century B. C. to Huan Tsiang in the 7th century
A. D. Testified that truthfulness was practiced by Indians in their wordly relations. "Truth
they hold in high esteem", wrote Megasthenes. Fa Hien and Huan Tsiang (who visited India
during the reign of Harsha) recorded similar observations. A virtue practiced for a thousand
year became a tradition. The procedure and atmosphere of the Courts discouraged falsehood.
The oath was administered by the judge himself, and not by a peon as today. While giving the
oath the judges were required to address the witness extolling truthfulness as a virtue and
condemning perjury as a horrible sin. Brihaspati says, "Judges who are well-versed in the
dharmashastra should address the witness in words praising truth and driving away falsehood
(from his mind)". The judges’ address to the witness did not consist of set words but a moral
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exhortation intended to put the fear of God in him. All the texts are unanimous on this point.
According to Narada, "The judges should inspire awe in the witness by citing moral precepts
which should uphold the majesty of truth and condemn falsehood". All the smirtis were
unanimous in holding that perjury before a law court was a heinous sin as well as a serious
crime. There were other provisions, calculated to reduce the changes of false evidence being
given. Katyayana enjoined, with much common sense that there should be no delay in
examining witnesses- obviously because delay dims the memory and stimulates imagination.
"The Sovereign should not grant any delay in the deposition of witnesses; for delay leads to
great evil and results in witnesses turning away from the law.”

Administrative Courts
An important feature of the judicial system of ancient India were the Special Courts of
criminal jurisdiction called the Kantakasodhana Courts. The artha-shastra says, "Three
commissioners (pradeshtarah) or three ministers shall deal with measures to suppress
disturbance to peace (kantakasodhanam kuryuh). According to the artha-shastra these courts
took cognizance not only of offences against the States but also violations of the law by
officials in the discharge of their official duties. Thus if traders used false weights or sold
adulterated good, or charged excessive prices, if the labourer in the factory was given less
than a fair wage or did not do its work properly, the Kantakasodhana courts intervened to
punish the culprits. Officers charged with misconduct, persons accused of theft, dacoity and
sex offences had to appear before the same court. These Courts had all the characteristics of
administrative courts. The existence of an Administrative Code is indicated in the Fourth part
of the Artha-shastra.

Administrative Code
The State in ancient India had a public sector of huge dimensions engaged in commerce and
industry. The modern capitalist notion that there should be no industries run by the State
would have appeared idiotic to our ancients. Under the Mauryan Empire there was a State
mercantile marine, a state textile industry, a state mining industry, and a state trading
department in charge respectively of a Superintendent-General of Shipping (navadhyaksha).
Textiles (Sootradhyaksha), mining (akaradhyaksha), and commerce. The regulation of each
state industry was under its own rules and all the rules were compiled and classified in the
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artha-shastra and may be regarded as an Administrative Code. I shall give a few illustrations.
The artha-shastra provides a complete Administrative Code prescribing rules of maritime and
riparian navigation. It enjoined that the State should have a Superintendent-General of
Navigation whose duties are defined thus: "The Superintendent of ships shall examine the
accounts relating to navigation not only on the oceans and mouths of the rivers, but also on
lakes, natural or artificial, and in the vicinity of Sthaniya and other fortified cities.”58 The
chapter contains a provision for the ships to have adequate few for ships. There were strict
regulations to ensure the safety of vessels: "For navigation on large rivers which cannot be
forded (atarya) even during winter and summer season, there shall be a service of large boats
(mahanavo), with a captain (shasaka), pilot (niyamaka), a crew to hold the sickle and the
ropes, and to clear the boat of water.” The artha-shastra also contains regulations indicating
that the state mercantile marine operated on the high seas and it provided that "passengers
arriving in port on the royal ships shall pay their passage money (yatra-vetanam)."
The rates were to be fixed by the Superintendent-General. Incidentally, the existence of this
code proves beyond doubt that the people of India were a sea-faring people with extensive
trade relations with foreign countries. Similarly, the manufacture of textiles and cotton yarn,
which was a huge industry exporting textiles to foreign countries had a public as well as a
private sector. The public sector was under a SuperintendentGeneral of Textiles
(Sootradhyaksha). He had a large organization under him. The artha-shastra prescribed the
duties of the Sootradhyaksha and the other officials working under him. It enjoins: "The
Superintendent-Genral of Weaving shall employ qualified persons to manufacture treads
(sutra), coats (varma), clothes (vastra), and ropes.” One of his duties was to give employment
to women in their own homes. Cotton was distributed among them and spun into tread and
either collected by the department or delivered by the women themselves. But the artha-
shastra contains strict regulation against the taking of liberties with such women or
withholding their wages. It prescribed: "If the official of the Superintendent stares at the face
of such woman or tries to engage her in conversation about matters other than her work (in
other words, makes what an American would call a pass at her) he will be punished as if he is
guilty of a first assault. "Delay in payment of wages shall be likewise punishable. Another
regulation made it a punishable offence to show any undue favour to a women worker. It
provided; "If an official pays wages to a woman for no work done, he will be punished.”

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Collection of taxes and import duties There was a code prescribing rules governing the
collection of taxes and import duties. This development was in charge of the Superintendent
General of taxes (Shulkadhyaksh).
The merchants at the customs were liable to declare their merchandise which had to bear a
seal when imported. Penalties were prescribed for making a false declaration. One rule
enjoined: "If the merchandise bears no seal, their duty shall be doubled". But in case of
counterfeit seal, the merchant was liable to pay a penalty amounting to eight times the normal
duty. If the seal was torn, the merchant was liable to be detained in a lock-up reserved
loiterers. The Administrative Code in the 4th Section of the artha-shastra contains detailed
regulations for the control of the other departments of the state. These regulations were not
enforced by the ordinary courts but by Commissioners (Pradeshtarah) who functioned as
Kantak Shodhana courts. I shall sum up the fundamental principles on which the judicial
process in ancient India was founded: The trial was always in public and always by several
judges collectively. Cases were heard in their serial order except in case of urgency. Delay in
the disposal of cases was condemned by all authorities and judges who were guilty of such
delay were liable to be punished.
The Sovereign was not to interfere with the judiciary but on the contrary the latter was under a
duty to interfere in case of a wrong (judicial) decision by the king. The Judges were to be
impartial ; during the pendency of the suit they were forbidden to have any private talks or
relations with the parties. If a judge was guilty of partiality, or harassment, or deliberately
violated the prescribed procedure, he was liable to be punished. Corruption was the most
heinous offence in a judge and a corrupt judge was banished from the realm and forfeited all
his property. The procedure for suits was prescribed by law, and every suit was initiated by a
complaint or plaint filed by the aggrieved party who prayed for the redress of a legal wrong.
Citizens were strictly forbidden to instigate or finance or file complaints in which they were
not interested, and champerty was a punishable offence. I cannot do better than quote the
verdict of a very recent English writer: "In some respects the judicial system of ancient India
was theoretically in advance of our own today."

ii. Judicial System in Medieval India

After the disintegration of the Harsha empire a veil of obscurity descends on the history of
India which does not lift till the Muslim invasion. The country was divided once more into
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small kingdoms. But this did not result in any great change in the judicial system which had
taken roots during the preceding thousands of years. The standards and ideals of justice were
maintained in each kingdom, in spite of political divisions, the unity of civilization was
preserved, and the fundamental principles of law and procedure were applied throughout the
country. This I is indicated by the fact that the great commentaries on law like Mitakshara and
Shukarneeti Sar were written during this period and enjoyed an all-India authority. But the
establishment of the Muslim rule in India opened a new chapter in our judicial history.
The Muslim conquerors brought with them a new religion, a new civilization, and a new
social system. This could not but have a profound effect on the judicial system. The ideal of
justice under Islam was one of the highest in the Middle ages. The Prophet himself set the
standards. He said in the quran, "Justice is the balance of God upon earth in which things
when weighed are not by a particle less or more. And He appointed the balance that he should
not transgress in respect to the balance; wherefore observe a just weight and diminish not the
balance". He is further reported to have said that to God a moment spent in the dispensation of
justice is better than the devotion of the man who keeps fast every day and says prayer every
night for 60 years. Thus the administration of justice was regarded by the Muslim kings as a
religious duty. This high tradition reached its zenith under the first four Caliphs.
The first Qadi was appointed by the Caliph Umar who enunciated the principle that the law
was supreme and that the judge must never be subservient to the ruler. It is rported of him that
he had once a personal law suit against a Jewish subject, and both of them appeared before the
Qadi who, on seeing the Caliph, rose in his seat out of deference. "Umar considered this to be
such an unpardonable weakness on his part that he dimissed him from office."
The Muslim kings in India bought with them these high ideals. It is reported by Badaoni that
during the reign of Sultan Muhammad Tughlaq the Qadi dimissed a libel suit filed by the
Kind himself against Shaikhzada Jami, but no harm was done to him. (This however did not
prevent the Sultan from executing the defendant without a trial). Individual Sultans had very
high ideals of justice. According to Barani, Balban regarded justice as the keystone of
sovereignty "wherein lay the strength of the sovereign to wipe out the oppression". But
unfortunately the administration of justice under the Sultans worked fitfully. The reason was
that the outstanding feature of the entire Sultanate period was confusion and chaos. No Sultan
felt secure for a long time. One dynasty was replaced by another within a comparatively short

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period, and the manner of replacement was violent. Consequently the quality of justice
depended very much on the personality of the sovereign.
As a modern writer says, "The medieval State in India as elsewhere throughout its existence
had all the disadvantages of an autocracy-everything was temporary, personal, and had no
basic strength. The personal factor in the administration had become so pronounced that a
slight deviation of the head from the path of duty, produced concomitant variations in the
whole ‘trunk’. If the King was drunk ‘his Magistrates were seen drunk in public’. Justice in
not possible without security, and the Sultans of India never felt secure. Consequently, the
democratic ideal of government preached by Islam was obscure in India. During the
Sultanate, Islamic standards of Justice did not take root in India as an established tradition,
unlike the judicial traditions of ancient India which had struck deep roots in the course of
several thousand years and could not be uprooted by political divisions. Under the Moghal
Empire the country had an efficient system of government with the result that the system of
justice took shape. The unit of judicial administration was Qazi-an office which was borrowed
from the Caliphate. Every provincial capital had its Qazi and at the head of the judicial
administration was the Supreme Qazi of the empire (Qazi-ul-quzat). Moreover, every town
and every village large enough to be classed as a Qasba had its own Qazi. In theory, a Qazi
had to be "a Muslim scholor of blameless life, thoroughly conversant with the prescriptions of
the sacred law.
According to the greatest historian of the Mughal Empire, "the main defect of the Department
of Law and Justice was that there was no system, no organization of the law courts in a
regular gradation from the highest to the lowest, nor any proper distribution of courts in
proportion to the area to be served by them. The bulk fo the litigation in the country
(excluding those decided by caste, elders or village Panchayats mostly for the Hindus)
naturally came up before the courts of Qazis or Sadars."81 This view is not accepted by other
writers.
On the appointment of a Qazi, he was charged by the Imperial Diwan in the following words:
"Be Just, be honest, be impartial. Hold trials in the presence of the parties and at the court-
house and the seat of Government (muhakuma). Do not accept presents from thepeople of the
place where you serve, nor attend entertainments given by anybody and everybody. Write
your decrees, sale-deeds, mortgage bonds and other legal documents very carefully, so that
learned men may not pick holes in them and bring you to shame. Know poverty (faqr) to be
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your glory (fakhr)." But due to lack of supervision and absence of good tradition, these noble
ideals werenot observed. According to Sircar, "all the Qazis of the Mughal period, with a few
honourable exceptions, were notorious for taking bribes. The Emperor was the fountain
source of justice. He held his court of justice every Wednesday and decided a few cases
selected personally by him but he functioned not as an original court but as the court of
highest appeal. There is overwhelming evidence that all the Emperors from Akbar to
Aurangzeb took their judicial function seriously and discharged their duties Jahangir made a
great show of it and his Golden Chain has become famous in history. The weakness of Indo-
Mohammedan Law, according to Jadunath Sircar, was that all its three sources were outside
India.
"No Indian Emperor’s or Qazi’s decisions was ever considered authoritative enough to lay
down a legal principle to elucidate any obscurity in the Quran, or syupplement the Quranic
law by following the line of its obvious intention in respect of cases not explicitly provided
for by it. Hence, it became necessary for Indian Qazis to have at their slbow a digest of
Islamic law and precedent compiled from the accepted Arabic writer. . . . . Muslim law in
India was, therefore, incapable of growth and change, except so far as it reflected changes of
juristic thought in Arabia or Egypt." After the death of Aurangzeb, the Mughal Empire
collapsed within two generations. The provincial Governors and Faujdars arrogated to
themselves the status of sovereigns and awarded punishment for criminal offences in their
own names. A relic of this usurpation of the Emperors’ power is the name Faujdari given to
criminal trials even today.
After the conquest of Bengal by the British the process of replacement of the Mughal system
of justice by the British began. But it took a long time. In fact, The Sadre Diwani Adalat
continued to function till it was replaced by the High Courts. The Mughal judicial system has
left its imprint on the present system, and a good part of our legal terminology is borrowed
from it. Our civil courts of first instance and called Munsifs, the plaintiff and the defendant
are termed Muddai and Muddaliya and scores of other legal terms remind us of the great days
of the Mughal Empire.

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iii. Judicial System in modern India

The question quite often arises as to why the beginning of legal history of India is reckoned
from the advent of the British East India Company in 1600 A.D. Does it mean that there was
no judicial system as such, prior to this period?
Obviously the answer is ‘No’.
As for the above analysis the legal and judicial history of India is as old as 5000 years from
now. We have references about the existence of a well established judicial system in
Dharmasastras which contain elaborate laws on different aspects of human conduct. The law
was then a part of religion which everyone was supposed to follow meticulously. There were
sanctions for the non-observance of these laws. Coming to the Hindu period in the ancient
legal history of India, a well organised system of laws and courts is known to have existed for
the administration of civil, criminal and revenue justice during the period of Hindu rulers,
notably, King Ashok, Chandra Gupta Mourya, Harashvardhan, Kanishka etc. However, with
the advent of Mughal rule in India, the Muslim rulers introduced their own laws for judicial
administration within their territories whereas the Hindu kingdoms continued with their own
judicial system for the administration of justice. Thus, immediately before the arrival of
British East India Company, the laws and courts which were in existence in different parts of
India were haphazard and had no consistency whatsoever because they mainly depended on
the whims and fancies of the rulers who had their own notions of justice which radically
differed from one-another. Under the circumstances, it is difficult to establish any direct link
between the diverse judicial systems prevailing before 1600 A.D. and the present one. These
indigenous legal systems fell into oblivion with the strengthening of the grip of British rule in
India in the 17th century. It is mainly for this reason that the indigenous legal systems which
prevailed prior to the introduction of British rule in India are generally excluded from the
purview of the scope of study of Indian legal history or the Indian Judicial System.
i. Pre-Independent Era
The development of Indian Judicial System or legal history of modern India can be
conveniently traced through the following phases:
G. First Phase
From the point of view of chronology, the beginning of the Indian Judicial System can be
traced back to Anglo-India era when the judicial system was at its primitive stage. The British
settlers established their first settlement at Surat which was an important trading centre at that
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time. Subsequently, similar settlements started at Bombay and Madras. The British company
was entrusted with the responsibility of governing these three petty settlements in India. For
the administration of these settlements, they improvised an elementary judicial system
whereby they settled their mutual disputes inter-se. The notable feature of this system was that
the administration of law and justice was entrusted to non-legal and non-professional
Englishmen who belonged to the trading community having little knowledge of law and its
procedure. As a matter of fact they were expected to follow the provisions of English Law in
discharging their judicial functions, but in practice they decided cases according to their
common sense and their notions of justice. The judiciary in the Presidency Towns was
completely dependent and subordinated to the Executive which was the supreme
administrative authority in British occupied territories in India. This position continued for
about a hundred and fifty years.
H. Second Phase
The second phase of history of the Indian Judicial System commences from the establishment
of the Supreme Court of Judicature at Fort William (Calcutta) under the Regulating Act, 1773
enacted by the British Parliament which is considered to be a landmark in the development of
legal institutions in India. It was an English Law Court which consisted of professional
English judges who were well versed in law and legal practice. There was also an English Bar
to assist the Court in the administration of justice. This Court was modeled on the pattern of
the Court of Westminster of England. The Supreme Court was completely independent of the
legislature as also the executive. To some extent it even exercised some control over the
executive and thus introduced in India the concept of judicial control of administrative
actions. The net result was that the powers of the executive government were drastically
curtailed which eventually led to hostility and frequent clashes between the Supreme Court
and the Supreme Council. It was only after the Settlement Act of 1781 that the differences
between these two premier institutions of the Company’s government in India were resolved
by making the Council independent of the Jurisdiction of the Supreme Court.
I. Third Phase
The third phase in the evolution of the Indian Judicial System or Anglo-Indian legal history
begins when the Company itself took up the administration of justice in Bengal by
introducing the ‘Adalat System’ in the mofussils. In the initial stages, the Adaltas were
manned by the British executive civil servants of the Company who had no legal training.
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They, being primarily the executive officers of the Company’s government, considered
judicial work as their secondary functions of a lesser importance. However, in course of time
there was separation of the judicial functions from the executive in civil matters while the
administration of criminal justice still remained with the executive official called the
Collector. Thus, the Collector-Magistrate played a very significant role in the civil
administration and also in the criminal justice system of the Company’s government in India.
The Adalat System was later extended to other newly acquired territories of the Company in
India.
J. Fourth Phase
The next phase of the legal history of India is marked by the unification of dual system of
courts prevailing in the Presidency towns and mofussil areas into a single one with the
establishment of High Courts under the High Courts Act of 1861. The judicial system of
Presidency towns was essentially based on the English law having a distinct British character
while the Mofussil territories outside the Presidency town had the Adalat system based on
indigenous laws of Hindus and Muslims. The establishment of the High Court by abolishing
the Supreme Court and Sadar Adalats of Presidency Towns was an attempt to simplify the
judicial system. Therefore, as rightly suggested by Dr. M. P. Jain, “these High Courts may
rightly be considered as the precursor of the modern system of law and justice in India.”
Initially, High Courts were established in Calcutta, Madras and Bombay which were later
extended also to other Northern and Western Provinces.
K. Fifth Phase
The emergence of the ‘Privy Council’ as the highest Court of appeal from India, constitutes
yet another important phase of development in the Indian Judicial System. It stimulated
proper development of laws in India on a uniform pattern and also motivated the courts to
apply high judicial standards in discharging their functions as dispensers of justice. The
growth of laws became more conspicuous after 1833 with the setting up of the First Law
Commission which started the process of codification of Indian laws to ensure uniformity and
certainty in the administration of justice. The Second and the Third Law Commissions took in
their hand the task of codification of major laws in India.
L. Sixth Phase
The Government of India Act of 1935 set up the Federal Court of India to act as an
intermediate Appellant Court between High Courts and the ‘Privy Council’ in regard to
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matters involving the interpretation of the Indian Constitution. It was not to ‘pronounce any
judgment other than a declaratory judgment’ which meant that it could declare what the law
was but did not have authority to the exact compliance with its decisions. The Federal Court’s
power of ‘judicial review’ was largely a paper work and therefore, a body with very limited
power.

ii. Post-Independence Era

Despite the restrictions placed on it, the Federal Court continued to function till 26th January
1950, when independent India’s Constitution came into force. In the meantime, the
ConstituentAssembly became busy drafting the basic framework of the legal system and
judiciary. The members of the Constituent Assembly envisaged the judiciary as the guardian
of rights and justice. They wanted to keep the judiciary independent and insulated from the
coercion and pressures from other organs. ‘Sapru Committee Report’ 1 on judiciary and the
1
The Constitutional Proposals of the Sapru Committee commonly referred to as the Sapru Committee
Report was published in 1945 to resolve issues pertaining to minorities that had plagued Indian political and
constitutional discourse. It was prepared by a committee appointed by the Non-Party Conference in November
1944. Tej Bahadur Sapru, a well-renowned lawyer, convened the first meeting of the Non-Party Conference in
1941. This group consisted of individuals who represented a variety of interests except those of the dominant
political parities which were the Indian National Congress, Muslim League and the Communist Party.
In the early 1940s, the political ambience in India was dominated by the communal question created by the
conflict and impasse between the Congress Party and the Muslim league over the constitutional future of India –
more specifically, the future of Indian Muslims. The Gandhi-Jinnah talks of 1944 had failed and many
anticipated a civil war. In the same year, doubting the ability and will of mainstream political parties to make
progress on the communal problem, the Non-Party Conference set up a committee and appointed Tej Bahadur
Sapru as its Chairman. The Committee was briefed to –
‘…to examine the whole communal and minorities question from a constitutional and political point of view, put
itself in touch with the different parties and their leaders, including the minorities interested in the question, and
present a solution…’
The Sapru Committee consisted of thirty members who had distinguished themselves in public affairs and did
not operate under the mandate of any political party. Interestingly, eight individuals of this committee went on to
become members of the Indian Constituent Assembly.
The Report was 343 pages long excluding twenty appendices and contained detailed expositions on various
aspects of India’s constitutional future. One of the appendices – ‘Recommendations’ – distilled the report in the
form of the legal-constitutional document. This document consisted of four parts including one titled – ‘Leading
Principles of a New Constitution’ which was structured like a constitution and contained provisions relating to
the executive, legislature, judiciary, public services etc.
The Report rejected the Muslim League’s demand for Pakistan: it was not convinced that a separate state would
be advantageous to any community and felt that the division of India would ‘endanger the peace and progress of
the whole country’. It called for the setting up of a constitution-making body, in which Muslims and Hindus
would be equally represented, that would frame a new Constitution. It rejected separate electorates for Muslims
for the Union Legislature and instead proposed joint electorates with reservation of seats. It introduced a
‘Minorities Commission’ that would assess the welfare of minorities and had powers to recommend measures to
the government.
The Report had a section on fundamental rights (similar to constitutional antecedent documents that preceded it
like the Nehru Report, 1928) and contained provisions that included: freedom of speech, freedom of press,
religious freedom and equality. It called for the future constitution body to precisely formulate these rights.
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Constituent Assembly’s Adhoc Committee on the Supreme Court report formed the bulk of
the guidelines for judiciary. A.K.Ayyar, K.Santhanam, M.A.Ayyangar, Tej Bahadur Sapru,
B.N.Rau, K.M.Munshi,Saadulla and Dr. B.R.Ambedkar played important role in shaping the
judicial system of India.
The Unitary Judicial System seems to have been accepted with the least questioning. The
Supreme Court was to have a special, countrywide responsibility for the protection of
individual rights. Dr B. R. Ambedkar was perhaps the greatest apostle in the Assembly of
what he described as ‘one single integrated judiciary having jurisdiction and providing
remedies in all cases arising under the Constitutional law, the Civil, or the Criminal law,
essential to maintain the unity of the country’.
With the Indian independence in 1947, the judicial system had to be modified to suit the
changed conditions. The jurisdiction of the Privy Council over the Indian appeals came to an
end with the establishment of the Supreme Court of India on January 26, 1950. It must,
however, be stated that the pattern of judicial administration even after the independence of
India, remained more or less the same. Thus, the modern judicial system is essentially the
same as bequeathed to us by the British rulers. It has been said: “this is perhaps the best
legacy that the Englishmen have left behind.” Presently, India has a fairly advanced judicial
system having a well defined hierarchy of Courts with the Supreme Court at the apex and a

Interestingly, in the explanatory sections of the study, the Committee engaged with the issue of dividing rights
into justiciable and non-justiciable, though it did not propose anything in its recommendations. It, however,
alerted future drafters of the Constitution to pay attention to this question. This was arguably the first time a
constitutional document brought up the question of justiciable and non-justiciable rights in Indian constitutional
history.
Norman Brown, a renowned Indologist, in India’s Constitutional Issues (1946) argued that the Sapru Committee
Report ‘appears to be the most reflective and sustained Indian presentation of constitutional issues which has
been published’. However, scholars and commentators suggest that the report was ignored and did not create any
impact on key political players. Ray T Smith in The Role of Indian Liberals in the National Movement, 1915-
1947 (1968) argues that the report received ‘scant attention’. V.P Menon in Transfer of Power felt that the
absence of a top ranking Muslim in the Committee, and the Committee’s rejection of Pakistan and separate
electorates made the Muslim league hostile to the Report. The Congress too was cold towards the Report.
R.A. Wilson reviewed the Report in 1946 in a Royal Institute of International Affairs: ‘in an atmosphere less
charged with communal feelings they [the Sapru Committee] might have well “elicited the approbation of
thinking Indians” and formed a basis of discussions at least for a future constitution ”. A couple of months after
this review, a Constituent Assembly was set up and began framing the Indian Constitution. While
the Report may have been ignored or denounced when it was first published, it is plausible that the Report had
an indirect influence on the constitution-making process: seven members of Sapru Committee went on to
become the members of the Constituent Assembly. These included: M.R. Jayakar, Gopalaswami Ayyagar, John
Mathai, Frank Anthony and Sachidananda Sinha – who became the first (provisional) chairman of the
Constituent Assembly.

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number of subordinate Courts below it. The laws are mostly codified having a uniform
application throughout the country.
The primary object of judicial administration is to ensure even-handed justice to all alike and
establish Rule of Law throughout the country. It is, however, distressing to note that
introduction of ‘uniform civil code’ as contemplated by Article 44 of the Constitution of India
is not yet accomplished despite the Supreme Court decision in this regard. The independence
of judiciary has been well guarded by the Constitution of India and the provisions of appeal
are fair to ensure justice to common man.

Modern judicial system and hierarchy of Courts

Modern Nation-States function through a set of institutions. The British Reforms helped India
in its present legislative framework. The Parliament, the Judiciary and Executive apparatus
such as bureaucracy and the police and the formal structure of Union –State relations as well
as the electoral system are the set of institutions constituted by the idea of constitutionalism
(i.e. securing the ideals of Constitution). Their arrangements, dependencies and inter-
dependencies are directly shaped by the highest politico-legal document of our country - i.e.,
the Constitution. The legal system derives its authority from the Constitution and is deeply
embedded in the political system. The presence of judiciary proves the theory of separation of
powers wherein the other two organs, viz. legislature and executive stand relatively apart from
it.
Parliamentary Democracy works on the principle of ‘Dvisioin of Power,’ and in the making of
law there is direct participation of the legislature and the executive. It is only the judiciary that
remains independent and strong safeguarding the interests of the citizens by not allowing the
other organs to go beyond the constitutional limits. It acts, therefore, as a check on the acts of
the other two organs which might violate the Constitution, structure and powers assigned to
them. Only Judiciary has the powers of interpreting the Constitution and its mandates, and the
say of judiciary has to be followed by all organs.
Indian judiciary is a single integrated and unified system of Courts for the Union as well as
the States, which administers both the Union and State laws, and at the head of the entire
system stands the Supreme Court of India. The development of the judicial system can be
traced to the growth of Modern– Nation–States and constitutionalism.

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Structure of Judiciary
Under our Constitution there is a single integrated system of Courts for the Union as well as
the States, which administer both Union and State laws, and at the head of the system stands
the Supreme Court of India. Below the Supreme Court are the High Courts of different States
and under each High Court there are ‘subordinate courts’, i.e., courts subordinate to and under
the control of the High Courts. At the top of the judicial system is Supreme Court of India
followed by High Courts at State level. There are 25 High Courts in India, six having control
over more than one State/UT. Delhi has a High Court of its own among the Union Territories.
Each High Court shall consist of a Chief Justice and such other judges as appointed by the
President of India. At the District level, there are Subordinate District Courts.

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IV. The Supreme Court

India has a federal structure of governance and the Supreme Court of India is the federal
court. Articles 124 to 147 of the Constitution (Part V) deal with the functions, powers and
jurisdiction of the Apex Court.
Historical perspective

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 The promulgation of Regulating Act of 1773 established the Supreme Court of

Judicature at Calcutta as a Court of Record, with full power & authority.
 It was established to hear and determine all complaints for any crimes and also to
entertain, hear and determine any suits or actions in Bengal, Bihar and Orissa.
 The Supreme Courts at Madras and Bombay were established by King George –
III in 1800 and 1823 respectively.
 The India High Courts Act 1861 was enacted to create High Courts for various
provinces and abolished Supreme Courts at Calcutta, Madras and Bombay and also the Sadar
Adalats in Presidency towns. These High Courts had the distinction of being the highest
Courts for all cases till the creation of Federal Court of India under the Government of India
Act 1935. The Federal Court had jurisdiction to solve disputes between provinces and federal
states and hear appeal against Judgements from High Courts. However, it differs from the
Federal Court in the sense that appeals from the Federal Court could be made to the Privy
Council, whereas the Supreme Court of India is the highest court of appeal and no appeal can
be made against its order before any other court. After India attained independence in 1947,
the Constitution of India came into being on 26 January 1950.
The Supreme Court of India also came into existence and its first sitting was held on 28
January 1950. The law declared by the Supreme Court is binding on all Courts within the
territory of India.
It has power of judicial review – to strike down the legislative and executive action contrary
to the provisions and the scheme of the constitution, the distribution of power between Union
and States or inimical to the fundamental rights guaranteed by the Constitution.
 The Indian constitution provides for a provision of Supreme Court under Part V (The
Union) and Chapter 6 (The Union Judiciary).
 Articles 124 to 147 in Part V of the Constitution deal with the organisation,
independence, jurisdiction, powers and procedures of the Supreme Court.
 The Indian constitution under Article 124(1) states that there shall be a Supreme Court
of India constituting of a Chief Justice of India (CJI) and, until Parliament by law prescribes a
larger number, of not more than seven other Judges.
 The Jurisdiction of the Supreme Court of India can broadly be categorised
into original jurisdiction, appellate jurisdiction and advisory jurisdiction. However, there
are other multiple powers of the Supreme Court.
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Supreme Court Building

The main block of Supreme Court building was built on triangular plot of 17 Acres and the
building was designed by Chief architect Ganesh Bhikaji Deolalikar who was the first Indian
to head CPWD and designed Supreme Court Building in an Indo – British architectural style.
He was succeeded by Shridher Krishna Joglekar. The foundation stone of the Supreme Court
Building was laid by the first President of India, Dr. Rajendra Prasad on 29th October 1954.
The broad decision taken at the highest level in 1956 was that the ‘Supreme Court Building
should be constructed in the triangular plot on Hardinge Avenue opposite Hardinge Bridge in
conformity with wishes of the Prime Minister, the Home Minister, Minister of works,
Housing & Supply and Chief Justice of India”. Subsequently, the area has been rechristened
and now the building is surrounded by Tilak Marg in the West, Mathura road in the East and
Bhagwan Dass Road in the South and Tilak Bridge in the North.
The design of the building itself is in the shape of a balance with a pair of Scales of Justice.
Dr. Rajendra Prasad the first president of India on 4th August 1958 while opening the new
building of the Supreme Court said – “I do not think it will fall to the lot of any of my
successors to declare open such a ‘Temple of Justice’. This noble edifice has been conceived
and planned by Engineers and Architects who were trained in their profession according to
western standards. The architecture and construction of Building bear testimony of their
western experience and skill of high order and they have combined with it our conception of
justice. Traditionally we look upon justice as a pair of scales the two pans of which have to be
held evenly without allowing the beam from which they hang to incline to one side or the
other. We see two wings on the two sides. They will accommodate the offices and the records.
At the end of each wing is a semi circular structure. They represent the pans which are
attached to the beam at the top. This beam will accommodate the Court rooms wherein the
Hon’ble Judges will sit and dispense justice without inkling either to the right or to the left.”
The Central beam from the ends of which the scales hang, comprises the Chief Justice’s Court
at the Centre with two Court halls on either side. The right wing of the structure consists of
the Bar room, the offices of the Attorney General & other Law officers and the library of the
Court. The left wing consists of offices of the Court. There were two extensions one in 1979
and another in 1994.

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Mother and Child

A black bronze sculpture of 210 centimeter height was installed in lawn of the Supreme Court
on 20 February 1978. It portrays Mother India in the form of the figure of a lady. The lady is
sheltering the young Republic of India represented by the symbol of a child, who is upholding
the laws of land symbolically shown in the form of an open book. On the book, a balance is
shown, which represents dispensation of equal justice to all. The sculpture was made by the
renowned artist Shri Chintamoni Kar.
Dharma chakra logo of the Supreme Court
Its design is reproduced from the wheel that appears on the abacus of the Sarnath Lion capital
of Ashoka with 32 spokes. The inscription in Sanskrit “yatodharmastato jayah” means – Truth
alone I uphold. It is also referred to - as the wheel of righteousness, encompassing truth,
goodness and equity.
Appointment of Judges of the Supreme Court
Article 124(2) of the Constitution lays down the procedure for the appointment of the judges
of the Supreme Court. The judges of the Supreme Court are appointed by the President of
India in consultation with the Chief Justice of India. The President may consult such judges of
the Supreme Court and the high court’s as he considers necessary. The Law Minister also
advises the President in the matters of appointment of Supreme Court Judges.
- The judges of the Supreme Court are appointed by the President. The CJI is
appointed by the President after consultation with such judges of the Supreme
Court and high courts as he deems necessary.
- The other judges are appointed by the President after consultation with the CJI and
such other judges of the Supreme Court and the high court’s as he deems necessary.
The consultation with the chief justice is obligatory in the case of appointment of a
judge other than Chief justice.
- Appointment of Chief Justice From 1950 to 1973: The practice has been to appoint
the senior most judge of the Supreme Court as the chief justice of India. This
established convention was violated in 1973 when A N Ray was appointed as
the Chief Justice of India by superseding three senior judges. Again in 1977, M U
Beg was appointed as the chief justice of India by superseding the then senior-most
judge.

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- This discretion of the government was curtailed by the Supreme Court in the Second
Judges Case (1993), in which the Supreme Court ruled that the senior most judge of
the Supreme Court should alone be appointed to the office of the Chief Justice of
India.

What is the Controversy over Consultation and Evolution of Collegium system?

- The Supreme Court has given different interpretations of the word ‘consultation’ in
the above mentioned provisions.
- In the First Judges case (1982), the Court held that consultation does not mean
concurrence and it only implies exchange of views.
- In the Second Judges case (1993), the Court reversed its earlier ruling and changed
the meaning of the word consultation to concurrence.
- In the Third Judges case (1998), the Court opined that the consultation process to be
adopted by the Chief Justice of India requires ‘consultation of plurality judges’.

- The sole opinion of the CJI does not constitute the consultation process. He should
consult a collegium of four senior most judges of the Supreme Court and even if
two judges give an adverse opinion, he should not send the recommendation to the
government.
- The court held that the recommendation made by the chief justice of India without
complying with the norms and requirements of the consultation process are not
binding on the government.

What is Collegium System?

Collegium system was born through “three judges case” and it is in practice since 1998.
It is used for appointments and transfers of judges in High courts and Supreme Courts.
There is no mention of the Collegium either in the original Constitution of India or in
successive amendments

Who Heads the Collegium System?

The SC collegium is headed by the CJI (Chief Justice of India) and comprises four other
senior most judges of the court.
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A HC collegium is led by its Chief Justice and four other senior most judges of that
court.
Names recommended for appointment by a HC collegium reaches the government only
after approval by the CJI and the SC collegium.
Judges of the higher judiciary are appointed only through the collegium system and the
government has a role only after names have been decided by the collegium.

What is the Working of the Collegium System and The National Judicial Appointments
Commission?
- The collegium recommends of the names of lawyers or judges to the Central
Government. Similarly, the Central Government also sends some of its proposed
names to the Collegium.
- Collegium considers the names or suggestions made by the Central Government and
resends the file to the government for final approval.
- If the Collegium resends the same name again then the government has to give its
assent to the names. But time limit is not fixed to reply. This is the reason that
appointment of judges takes a long time.
- Through the 99th Constitutional Amendment Act, 2014 the National Judicial
Commission Act (NJAC) was established to replace the collegium system for the
appointment of judges.
- However, the Supreme Court upheld the collegium system and struck down the
NJAC as unconstitutional on the grounds that the involvement of Political
Executive in judicial appointment was against the “Principles of Basic Structure”.
I.e. the “Independence of Judiciary”.

What are the Qualifications Required for the Appointment of Judges?

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 (or high courts in succession) for five
years; or

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- He should have been an advocate of a High Court (or High Courts in succession) for
ten years; or
- He should be a distinguished jurist in the opinion of the president.
The Constitution has not prescribed a minimum age for appointment as a judge of the
Supreme Court.

What are the Oaths or Affirmations?

A person appointed as a judge of the Supreme Court, before entering upon his office, has to
make and subscribe to an oath or affirmation before the President, or some other person
appointed by him for this purpose. In his oath, a judge of the Supreme Court swears:
- to bear true faith and allegiance to the Constitution of India;
- to uphold the sovereignty and integrity of India;
- to duly and faithfully and to the best of his ability, knowledge and judgement to
perform the duties of the Office without fear or favour, affection or ill-will; and
- to uphold the Constitution and the laws.

What is the Tenure of Judges?

The Constitution has not fixed the tenure of a judge of the Supreme Court. However, it makes
the following three provisions in this regard:
- He holds office until he attains the age of 65 years. Any question regarding his age is
to be determined by such authority and in such manner as provided by Parliament.
- He can resign his office by writing to the President.
- He can be removed from his office by the President on the recommendation of the
Parliament.

How does the Removal of Judges take place?

A judge of the Supreme Court can be removed from his office by an order of the
President. The President can issue the removal order only after an address by Parliament has
been presented to him in the same session for such removal.
The address must be supported by a special majority of each House of Parliament (ie, a
majority of the total membership of that House and a majority of not less than two-thirds of

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the members of that House present and voting). The grounds of removal are two—proved
misbehaviour or incapacity.
- The Judges Enquiry Act (1968) regulates the procedure relating to the removal of a
judge of the Supreme Court by the process of impeachment:
- No judge of the Supreme Court has been impeached so far. Impeachment motions
of Justice V Ramaswami (1991–1993) and the Justice Dipak Misra (2017-18) were
defeated in the Parliament.

How are Salaries and Allowances Determined?

- The salaries, allowances, privileges, leave and pension of the judges of the Supreme
Court are determined from time to time by the Parliament. They cannot be varied
to their disadvantage after their appointment except during a financial emergency.
- In 2021, the High Court and Supreme Court Judges (Salaries and Conditions of
Service) Amendment Bill, 2021 was introduced in Lok Sabha.
- The Bill seeks to amend the High Court Judges (Salaries and Conditions of Service)
Act, 1954, and the Supreme Court Judges (Salaries and Conditions of Service) Act,
1958.

Why is it Important for the SC to be Independent?

- The Supreme Court is a Federal court, the highest court of appeal, the guarantor
of the fundamental rights of the citizens and guardian of the Constitution.
- Therefore, its independence becomes very essential for the effective discharge of the
duties assigned to it. It should be free from the encroachments, pressures and
interferences of the executive (council of ministers) and the Legislature (Parliament).
It should be allowed to do justice without fear or favour.
- The Constitution has made the following provisions to safeguard and ensure the
independent and impartial functioning of the Supreme Court:

Mode of appointment
- Security of tenure
- Fixed service conditions
- Expenses charged on the consolidated fund
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- Conduct of judges 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

What are Jurisdiction and Powers of Supreme Court?

What is Original Jurisdiction?
Article 131 provides the original jurisdiction of the Supreme Court. The original jurisdiction
of the court extends to the disputes between the Union and the States and disputes between
two or more States.
The original jurisdiction of the Indian Supreme Court is not as wide as the American Supreme
Court. The American Supreme Court has original jurisdiction in matters concerning
ambassadors and ministers. The original jurisdiction of the Indian Supreme Court, on the
other hand, extends to only legal and not private persons. The only instance where a private
person can directly approach the Apex Court is for enforcing any of the fundamental rights of
the individual.
As a Federal court, the Supreme Court decides disputes between different units of the Indian
Federation. Article 131 provides the original jurisdiction of the Supreme Court. More
elaborately, any dispute between:
- the Centre and one or more states; or
- the Centre and any state or states on one side and one or more states on the other; or
- Between two or more states.
- In the above federal disputes, the Supreme Court has exclusive original jurisdiction.

Further, this jurisdiction of the Supreme Court does not extend to the following:
- A dispute arising out of any pre-Constitution treaty, agreement, covenant, engagement, sand
or other similar instrument.
- A dispute arising out of any treaty, agreement, etc., which specifically provides that
the said jurisdiction does not extent to such a dispute.
- Inter-state water disputes.
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- Matters referred to the Finance Commission.

- Adjustment of certain expenses and pensions between the Centre and the states.
- Ordinary dispute of Commercial nature between the Centre and the states.
- Recovery of damages by a state against the Centre.

What is Writ Jurisdiction?

The Supreme Court is empowered to issue writs, including habeas corpus, mandamus,
prohibition, quo-warranto and certiorari for the enforcement of the fundamental rights of
an aggrieved citizen.
- In this regard, the Supreme Court has original jurisdiction in the sense that an
aggrieved citizen can go directly to the Supreme Court, not necessarily by way of
appeal.
- However, the writ jurisdiction of the Supreme Court is not exclusive. The High Courts
are also empowered to issue writs for the enforcement of the Fundamental Rights.

What is Appellate Jurisdiction?

The Supreme Court is primarily a court of appeal and hears appeals against the judgements of
the lower courts. The Supreme Court has very wide appellate jurisdiction. Appeals can be
made before the Apex Court where the matter involves a substantial question of law. Such
matters may be referred either by the sanction of the high court or under a Special Leave
Petition [Article 136(1)].
The Constitutional Bench of the Supreme Court, in the case of Sir Chunilal V. Mehta and
sons Ltd. v. Century Spinning and Manufacturing Co. (1962), laid down what would
constitute a substantial question of law. The court held that if the question is regarded to be of
public importance or is deemed to affect the parties’ rights in a substantial manner and if
neither the question nor the principles to be applied for its determination have been settled
finally by the court, then it would be considered to be a substantial question of law.
Article 132(1) empowers the Supreme Court to allow appeals against any judgment, order or
decree from the high court if the matter is certified to involve a substantial question of law by
the high court under Article 134A.
Similarly, in criminal cases, an appeal can be made before the Apex Court with the prior
certification of the high court or where the accused is sentenced to death by the high court in
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the reversal of his acquittal or where the high court sentences a person to death after
withdrawing the case from a subordinate court.
- In civil cases, appeals can be made before the Apex Court under Article
133(1) subsequent to the high court’s sanction.
- It enjoys a wide appellate jurisdiction which can be classified under four heads:

 Appeals in constitutional matters

 Appeals in civil matters
 Appeals in criminal matters
 Appeals by special leave

What is Advisory Jurisdiction?

The Supreme Court is also empowered to give its advisory opinion on any matter referred by
the President under Article 143(1). Thus, the Constitution under Article 143 authorizes the
President to seek the opinion of the Supreme Court in the two categories of matters:
- On any question of law or fact of public importance which has arisen or which is
likely to arise.
- On any dispute arising out of any pre-constitution treaty, agreement, covenant,
engagement, sanador other similar instruments.
The advisory opinion of the court is not binding on the government. In the case of In Re: The
Special Courts Bill (1978), a private member Bill was introduced in the Parliament for setting
up Special Courts for the purpose of deciding cases involving offences committed by public
officers during emergencies. The President sought the opinion of the court regarding the
constitutionality of the Bill. The court held that the Parliament was empowered to establish
such courts. However, the court held that the opinion was not binding on the parties. The
opinion of the court has significant judicial importance and will not bind the parties.

What is a Court of Record?

As a Court of Record, the Supreme Court has two powers:
- The judgements, proceedings and acts of the Supreme Court are recorded for perpetual
memory and testimony. These records are admitted to be of evidentiary value and
cannot be questioned when produced before any court.
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- They are recognised as legal precedents and legal references.

- It has power to punish for contempt of court, either with simple imprisonment for a
term up to six months or with fine up to 2,000 or with both.

What is the Power of Judicial Review?

The Supreme Court has the power to review any judgment pronounced or order made by it.
Article 137 provides for review of judgment or orders by the Supreme Court wherein, subject
to the provisions of any law made by the Parliament or any rules made under Article 145, the
Supreme Court shall have the power to review any judgment pronounced or made by it. It is
pertinent to note that Article 262 empowers the Parliament to confer or deprive, by law, the
Apex Court of the jurisdiction in respect of matters relating to control, operation or
distribution of inter-state river waters. The jurisdiction of the Supreme Court can be extended
by the Parliament by virtue of Article 138.
he Supreme Court has the power to review any judgment pronounced or order made by it.
Article 137 provides for review of judgment or orders by the Supreme Court wherein, subject
to the provisions of any law made by the Parliament or any rules made under Article 145, the
Supreme Court shall have the power to review any judgment pronounced or made by it
On examination, if they are found to be violative of the Constitution (ultra-vires), they can
be declared as illegal, unconstitutional and invalid (null and void) by the Supreme Court.
Consequently, they cannot be enforced by the Government.
Article 141 provides that the subordinate courts would be bound by the law laid down by the
Apex Court.

What are the recent issues in Supreme Court?

Master of Roster: It refers to the privilege of the Chief Justice to constitute Benches to hear
cases.
- The controversy has emerged in the Supreme Court over absolute power of Chief
Justice on the judicial administration.
- The SC has upheld a number of times that “the Chief Justice is the master of the roster
and he alone has the prerogative to constitute the Benches of the Court and allocate
cases to the Benches so constituted.”

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- Be it the Chief Justice of India or Chief Justice of any high court it is he or she who
heads the administrative side. This includes allocation of matters before a judge as
well.
- So, no Judge can take up the matter on his own, unless allocated by the Chief Justice
of India.

High Courts
The Constitution provides for a High Court in each State under Article 214. However, the
Parliament is empowered to establish a common high court, by law, for two or more states.
There are 25 High Courts in India, six having control over more than one State/UT. Delhi has
a High Court of its own among the Union Territories. Each High Court shall consist of a
Chief Justice and such other judges as appointed by the President of India.

Qualifications and Tenure

A person shall not be fit for appointment as a Judge of the High Court unless
 He is a citizen of India
 He should have held a judicial office in the territory of India for ten years
 He has been for at least 10 years an advocate of one or two or more High Court

Appointment of judges of High Courts

The judges of High Court are appointed by the President. In the case of the Chief Justice of
the high court, the appointment is made by the President after consulting the Chief Justice of
India and the Governor of the concerned State. With respect to other judges of the high court,
the President is required to consult the Chief Justice of the concerned high court.
In the landmark case of S.P. Gupta and Others v. Union of India (1981), it was held by the
Apex Court that the opinion of all the three authorities, that is, the Chief Justice of India, the
concerned high courts respectively, and the Governor of the State are equally important and
the opinion of one does not have primacy over the other. Furthermore, the court, while noting
the examples of Australia and New Zealand, recommended the constitution of a Judicial
Commission for the recommendation of the appointment of judges to the high courts.
The Constitution (Ninety-Ninth Amendment) Act, 2014 provided for the appointment of
judges on the recommendation National Judicial Appointments Commission and attempted to
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do away with the requirement of consulting the Chief Justice, However, in the case
of Supreme Court Advocate on Record Association v. Union of India (1993), the Amendment
was declared to be unconstitutional.

Functions of a High Court

- It controls the functioning of the subordinate courts and issues rules and guidelines for
their functioning.
- The high court hears appeals against the judgment and orders of the subordinate
courts.
- The high court is empowered to issue writs to safeguard the fundamental rights of
individuals.
- The high courts have the power of judicial review and can declare a law to be void if it
is found to be in contravention of the provisions of the Constitution.
- If a matter before the subordinate court involves a substantial question of law, then the
high court is empowered to withdraw the matter and hear the matter.

Jurisdiction of a High Court

The high court exercises jurisdiction over the territorial limits of the concerned State.
 Original jurisdiction: The high court has original jurisdiction in matters relating to
the enforcement of fundamental rights, certain revenue matters and election to the State
Legislature. The high court has the power to punish for its contempt under Article 215.
 Appellate jurisdiction: The high courts have appellate jurisdiction with reference to
both civil and criminal matters. Where the accused is sentenced to 7 years of imprisonment or
more or to the death penalty by the sessions court, an appeal can be made before the high
court. Furthermore, cases involving substantial questions of law can be appealed before the
high courts.
 Writ jurisdiction: Article 226 of the Constitution empowers the high courts to issue
writs for the enforcement of the rights of individuals. It is pertinent to note that the high court
can issue writs for the enforcement of fundamental as well as legal rights.
 Supervisory jurisdiction: Article 227 of the Constitution confers supervisory
jurisdiction on the high courts. The high court exercises superintendence over all such courts
and tribunals that are established within its territorial jurisdiction.
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 Review jurisdiction: Article 226 confers the review jurisdiction on the high courts
and empowers them to review their own judgments and orders. The high courts entertain a
review petition when there has been material error resulting in miscarriage of justice or where
there has been a flagrant procedural error.
An appeal can be made before the high court against the order of the Sessions Judge to
sentence the accused for a term exceeding 7 years. An appeal can also be made before the
high court in certain cases from the order of the metropolitan or other judicial magistrates.
However, it is pertinent to note that no appeal can be made before the high court in relation to
petty cases.

Important Terms related to High Courts in India:

Tribunal – A tribunal is a term for anybody acting judicially, whether or not it is called a
tribunal in its title. For example, an advocate appearing before a Court on which a single
Judge was sitting could describe that judge as ‘their tribunal’.
Permanent Bench – A permanent bench comprises of one or more High Court judges who sit
yearlong at a particular location that is different from the permanent seat of the High Court.
Circuit Bench – A Circuit Bench is for territories which are far-flung but do not have too
many matters to justify a full-fledged permanent bench. As a result, once or twice a year,
some judges travel to these areas and dispose off all the High Court appeals of that
jurisdiction.
Division Bench – In a Division Bench, a case is heard and judged by at least 2 judges.
Full Bench – A Full bench refers to a court of law consisting of a greater-than-normal
number of judges.

Subordinate Courts
The hierarchy of courts that lie subordinate to High Courts are referred to as Subordinate
Courts. It is for the State Governments to enact for the creation of Subordinate Courts. The
nomenclature of these subordinate courts differs from State to State but broadly there is
uniformity in terms of the organisational structure (i.e. the hierarchy remains the same for
every State at the most). Below the High Courts, there are District Courts for each district, and
has appellate jurisdiction in the district. Under the District Courts, there are the lower courts
such as the Additional District Court, Sub Court, Munsiff Magistrate Court, Court of Special
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Judicial Magistrate of I class, Court of Special Judicial Magistrate of II class, Court of Special
Munsiff Magistrate for Factories Act and labour laws, etc. Below the Subordinate Courts, at
the grass-root level, are the Panchayat Courts (Nyaya Panchayat, Gram Panchayat, Panchayat
Adalat, etc.). These are, however, not considered as courts under the purview of the criminal
courts jurisdiction.District Courts can take cognizance of original matters under special status.
The Governor, in consultation with the High Court, makes appointments pertaining to the
District Courts. Appointment of persons other than the District Judges to the judicial service
of a State is made by the Governor in accordance with the rules made by him in that behalf
after consultation with the High Court and the State Public Service Commission. The High
Court exercises administrative control over the District Courts and the courts subordinate to
them, in matters as posting, promotions and granting of leave to all persons belonging to the
State Judicial Service.

The District Courts

The district courts are established by the State Government. They may be established for an
individual district or a group of districts. The high court is responsible for supervising the
administration of the District courts. There are primarily two types of District courts:
1. Criminal courts, and
2. Civil courts.
The civil courts adjudicate disputes relating to matters such as agreements, rent and divorce.
These cases are decided on the basis of the procedure laid down by the Code of Civil
Procedure, 1908.
The criminal courts decide cases concerning the violation of law and which are filed by the
state. These cases include dacoity, murder, etc. The working of the criminal codes is governed
by the procedure laid down by the Code of Criminal Procedure, 1973.
It is pertinent to note that the district courts while dealing with criminal matters, are referred
to as session courts.
Any person aggrieved by the order of the district court can prefer an appeal before the high
court. Below the district court, there are various other subordinate courts such as the Court of
Additional District Judge, Court of Judicial Magistrate of Ist Class, Court of Judicial
Magistrate of IInd Class, etc. The largest number of cases are disposed of at this level. The
trial and recording of evidence also take place at this level.
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The land revenue matters in the state are decided by the revenue courts. The revenue courts
include the courts of Tehsildar, Collector, etc. The Board of Revenue constitutes the highest
revenue court.

Appointments and composition

The district courts are presided over by a district judge who is appointed by the Governor of
the State. The Governor appoints the district judge after consulting the concerned high court.
The Additional District Judge may also be appointed subject to the workload.
Other judicial officers are appointed by the State Public Service Commission.

Tribunal
Various special tribunals are set up by the government for dealing with specific matters such
as taxes, land disputes, etc. Tribunals may be judicial or quasi-judicial. The Tribunals provide
expeditious justice and are usually established when there are several pending matters relating
to a particular subject matter pending before the traditional courts. Thus, these tribunals help
in reducing the burden of the traditional courts.
Article 323A of the Constitution empowers the Parliament to establish Central as well as
State-level administrative tribunals which adjudicate on matters relating to the recruitment
and service of public servants.
Article 323B provides a list of subject matters for which the Tribunals may be established by
the Union Parliament or the State Legislatures. It includes tax, labour disputes, elections, land
reforms, etc. In the landmark case of Union of India v. R. Gandhi and Ors. (2010), it was held
that the list of matters provided in Section 323B is not intended to restrict the legislature from
establishing tribunals for adjudicating any other matters. The list is not exhaustive and the
legislature can establish Tribunals pertaining to any matter provided in the Seventh Schedule.

Nyay Panchayats
The Nyay Panchayats are established at the village level and are aimed at providing cheap and
expeditious justice. They are based on the direction provided by Article 40 which states that
the State must take steps to empower the panchayats. The 73rd Constitutional
Amendment conferred Constitutional status on the panchayats. These Nyay Panchayats
adjudicate on minor offences such as wrongful restraint or theft. While these Panchayats
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enjoy both civil as well as criminal jurisdiction, the pecuniary jurisdiction of these judicial
constituents is very low.
The Panches are appointed by the adult people of the village itself. Furthermore, since the
posts are honorary, the members do not receive any salary. The minimum age of the members
of Nyay Panchayat is 30 years.
The Ashok Mehta Committee which was constituted in 1977 made certain recommendations
for the reformation of the Nyay Panchayats. It suggested that the government should form a
special cadre for judges of the Nyay Panchayat. The civil jurisdiction of the Nyay Panchayats
should be broadened and their criminal jurisdiction should be equivalent to a judicial
magistrate of 1st class. The provisions of the Code of Civil Procedure, 1908 as well as the
provision of the Indian Evidence Act, 1872 should not apply to the proceedings of a Nyay
Panchayat. However, the recommendations of the Committee have not been implemented.

Lok Adalat
Unlike the Nyay Panchayat, the Lok Adalats do not adjudicate disputes, rather, they aim at
resolving disputes through mediation and arbitration. The Lok Adalats are also known as the
‘People’s Court’. The Lok Adalats consist of judicial officers, retired and serving, and such
other persons as prescribed by the Central Government.
A statutory status was conferred on the Lok Adalats by the Legal Services Authorities Act,
1987. Chapter VI of the Act expressly deals with the organization of Lok Adalats. Section 21
of the Act provides that the award made by a Lok Adalat is deemed to be a decree of a civil
court. Furthermore, such an award is binding on the parties to the dispute.
The Lok Adalat has jurisdiction over such cases which are pending before the court for which
the Adalat is convened. The parties may either agree to refer the matter to the Lok Adalat or
one of the parties may apply before the Lok Adalat or the matter may be referred to the Lok
Adalat by the court. Section 20 provides that a Lok Adalat while discharging its duties, must
observe the principles of “justice, equity, fair play and other legal principles“.

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