indian judiciary
TRANSCRIPT
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The Indian Judiciary
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Indian law refers to the system of law whichoperates in India.
It is largely based on English common law.
Various Acts introduced by the British are stillin effect in modified form today.
Much of contemporary Indian law shows
substantial European and American influence.
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History of Indian law
Ancient India represented a distinct tradition of
law.
India had an historically independent school of
legal theory and practice.
TheArthashastra ( written by Chanakya), dating
from 400 BC, and theManusmriti, from 100 AD,
were influential treatises in India. Manu's central philosophy was tolerance and
pluralism, and was cited across Southeast Asia.
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Indian Judicial System
The three-tiered system of Indian judiciarycomprises of Supreme Court (New Delhi) at itshelm;
High Courts standing at the head of state judicialsystem;
Followed by district and sessions courts in thejudicial districts, into which the states are divided.
The lower rung of the system then comprises ofcourts of civil (civil judges) & criminal(judicial/metropolitan magistrates) jurisdiction.
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INDIA
INDIAN JUDICIARY
SUPREME COURT
HIGH COURT
DISTRICT COURT
SUB-DIVISIONAL COURT
NYAYA PANCHAYAT/SMALL CAUSES COURT
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The Supreme Court
On the 28th of January, 1950, the Supreme Court came into
being.
The judges of the Supreme Court at the time of inauguration
were Chief Justice Harilal J. Kania and Justices Saiyid Fazl Ali,M. Patanjali Sastri, Mehr Chand Mahajan, Bijan Kumar
Mukherjee and S. R. Das.
The first Attorney General for India was Mr. M.C. Setalvad.
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The High Courts Cont
The High Court hears First Appeals from the decisions of the
District Courts.
Section 100 of the Code of Civil Procedure provides for a
Second Appeal from Appellate decrees.
Under Section 115 of the Code, the High Court is conferred
wish provisional jurisdiction.
Under Article 227 of the Constitution also, the High Court in
the exercise of its powers of superintendence entertains
revision petitions to correct errors on the part of lower
Courts and Tribunals in Judicial & Quasi Judicial matters.
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The High Courts Cont
On the Criminal side, the High Court has to confirm all
sentences of death passed by Courts of Sessions and hear
References in this behalf.
High Court hears Criminal Appeals from convictions awardedby Sessions Judges and Additional Sessions Judges or from the
judgment of any other Court, where a sentence for more than
seven years imprisonment has been passed.
The High Court is also empowered to entertain appeals fromorders of acquittal passed by any Court.
High Court has also been conferred with Criminal Provisional
Jurisdiction.
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The Subordinate Courts
This subordinate Courts are: (a) District Courts, empowered to hear appeals from courts of
original civil jurisdiction besides having original civil
jurisdiction
(b) Sessions Court is courts of criminal jurisdiction, having thesimilar scope of powers.
The courts of specific original jurisdiction are courts of Civil
Judges, of Judicial Magistrates; Small Causes courts & Courts of
Metropolitan Magistrates.
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Quasi - Judicial System
This appendage to the Indian judicial system is a recent & sincere
attempt on the part of the government to expedite the judicial
process through dilution of procedural formalities & avoidance of
litigation.
Tribunals form an indispensable part of this system, which areappointed by the government and comprise of judges & experts
on the particular field, for which the tribunal has been
constituted.
Ex: Human Rights Commission, Consumer Forums, WomenProtection Cell and so on
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Unified Judiciary
Features of the Indian Judiciary
Power of Judicial Review
Judicial Independence
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Source of Law
Primary Source:
a. The primary source of law is in the
enactments passed by the Parliament or the
State Legislatures.
b. The President and the Governor have limited
powers to issue ordinances.
c. These ordinances lapse six weeks from the
re-assembly of the Parliament or the State
Legislature.
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Source of Law Cont.
Secondary Source:
a. Secondary source of law is the judgments of
the Supreme Court, High Courts and some ofthe specialised Tribunals.
b. The Constitution provides that the law
declared by the Supreme Court shall be
binding on all courts within India.
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Criminal law
Indian Penal Code (IPC) provides a penal code for allof India including Jammu and Kashmir, where it was
renamed the Ranbir Penal Code (RPC).
The code applies to any offence committed by anIndian Citizen anywhere and on any Indian
registered ship or aircraft.
Indian Penal Code came into force in 1862 (duringthe British Raj) and is regularly amended, such as to
include section 498-A.
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Civil Procedure Code
The Civil Procedure Code (C.P.C.) regulate the functioningof Civil courts.
It lays down the:
- Procedure of filing the civil case.- Powers of court to pass various orders.
- Court fees and stamps involved in filing of case.
- Rights of the parties to case (plaintiff & defendant)
- Jurisdiction & parameters of civil courts functioning.- Specific rules for proceedings of a case.
- Right of Appeals, review or reference.
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Family law
Indian civil law is complex, with each religion
having its own specific laws which they adhere
to.
After independence Indian laws have adapted
to the changing world.
The most recent being the Domestic Violence
Act[2005].
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Industrial and Labour Laws
The most notable laws are as follows:
Industrial Dispute Act, 1947
Wages Act, 1948
Employees State Insurance Act, 1948
Employees Provident Fund and Miscellaneous ProvisionsAct, 1952
Beedi and Cigar workers Act, 1974
Equal Remuneration Act, 1976
Contract Labour Act, 1970
Child Labour Act, 1986
Bonded Labour System Act, 1976
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Writs
The Writs are issued by the Supreme Court underArticle 32 and by the High Courts under Article 226of the Constitution of India.
Types of Writs:
Writ of prohibition
Writ of habeas corpus Writ of certiorari
Writ of mandamus
Writ of quo warranto
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Qualification for Appt. as Judge
Citizen of India
AND
High Court Judge for at least 5 yearsOR
High Court Advocate for at least 10 years
ORDistinguished Jurist
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Impeachment of a Judge
Grounds: Proved Misbehaviour or Incapacity
Procedure:
A Motion addressed to the President signed by 100
members of Loksabha or 50 members of
Rajyasabha
Investigation by Judges Inquiry Committee Motion carried in each House by majority of the
total membership and by a majority of at least two
thirds members present and voting
Presidents order for removal of the Judge
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Independence of Judges
Appointment of Judges after Consulting Judges
Removal by Special Majority: Very difficult
Salaries and Pensions cannot be varied to theirdisadvantage
Salaries charged on the Consolidated Fund of India
Discussion of the conduct of Judges forbidden inParliament
After retirement prohibition to plead in Court
Power to punish for its Contempt
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Jurisdiction
Original Jurisdiction - Art. 131
Writ Jurisdiction
Appellate Jurisdiction: Civil
Appellate Jurisdiction: Criminal
Special Leave to Appeal - Art. 136
Advisory Jurisdiction
Review
Court of Record
Laying down Precedent
Complete Justice: Art.142
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Original Jurisdiction
Dispute between:1. Govt. of India and any State
2. Govt. of India and any State on one side and anyother State on other side
3. Two or more States inter se
Subject matter of Dispute:Any question of Law or Fact on which
existence or extent of legal right depends. Exceptions:
1. Pre-Constitution Treaties, Agreements
2. Inter-State Water disputes
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Writ Jurisdiction: Art. 32
Habeas Corpus
Mandamus
Prohibition
Certiorari Quo Warranto
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Habeas Corpus
To have a body
Object: To set free a person illegally detained
Producing Body in Court Necessary? Petition by friend/Relative also. Locus Standi
liberalised
Writ addressed to:
Government
An Official
Private Person
For disobedience : Contempt of Court
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Mandamus
Mandamus = A Command Order to do something: demands some activity
Command to perform Public or Quasi-public duty
Writ available against:
Government
Public Servant
Judicial Body
Writ not available against President of India
Governor
Private Individual
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Prohibition
Order to stay a judicial Proceeding
When?
Excess of Jurisdiction
No Jurisdiction
During pendency of proceeding (Prevention)
To whom?
Judicial Authority
Quasi-judicial Authority Public Servant having duty to act judicially
Not to Administrative Authority
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Certiorari
To whom: Judicial or Quasi-Judicial Authority Object: To quash order or decision (Cure)
When?
Court or Tribunal acts without jurisdiction
Principles of Natural Justice not followed:
Bias: Personal, Pecuniary
Audi Alteram Partem
Speaking Order
Decision obtained by Fraud, Collusion, Corruption
Error of Law apparent on the face of record
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Quo Warranto
Quo Warranto = What authority? Court inquires into legality of claim to Public
Office
Court ousts incumbent if claim not well founded
Object: To prevent usurpation of Public Office(Constitutional or Statutory)
When? Disqualified for the post
Procedure not followed
Irregular appointment
Locus standi liberal
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Appellate Jurisdiction
Civil
From Judgment, Final Order, Decree, Sentence of High Court
Constitutional Question involved:
Substantial question of Law as to the Interpretation of theConstitution
And
Certificate of the High Court
No Constitutional Question involved:
Substantial Question of Law of general importance
And
In the opinion of the High Court the said question needs to bedecided by the Supreme Court
And
Certificate of the High Court
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Appellate Jurisdiction
Criminal
As of right: HC on appeal reverses an order of Acquittal
and sentences to death.
HC withdraws a case to itself from subordinatecourt and sentences to death.
HC enlargement of Cr. App. Juris. Act, 1970
On Certificate of the High Court
High Court certifies a criminal case as fit onefor appeal to the Supreme Court.
Substantial question of law as to theinterpretation of the Constitution + Cert. of HC
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Special Leave to Appeal
(SLP) Art. 136
Discretionary power
Unfettered power
From : Any judgment, decree, order, sentence,
determination in any cause or matterPassed or made by any Court or Tribunal
Exception: Judgment of court of the Armed Forces
When? In exceptional cases
Illegality, Irregularity, Error of Law
Miscarriage of Justice
Principles of Natural Justice violated
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Advisory Jurisdiction 1
Art. 143
President may refer to Supreme Court foropinion
Question of Law or Fact:Which has arisen or likely to ariseAnd of great public importance
Court mayafter Hearing report to the President
Court Shallafter Hearing report
Judges to hear: Minimum 5
No litigationOpinion not binding on the Govt.
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Advisory Jurisdiction 2
Art. 143
In re Delhi Laws Act case (1951)
In re Kerala Education Bill (1958)
In re Berubari Union (1960)
Keshav Singhs case (1965)
The Special Courts reference (1978)
Cauvery Water Disputes Tribunal (1992)
Ismail Faruqui v. Union of India (RamJanma Bhumi case) (1994)
Judges Appt. and Transfer reference (1999)
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Review
To review any judgment pronounced
or order made
Subject to Law passed by Parliament When?
Discovery of new important matters of evidence
Mistake or error on the face of the record
Any other sufficient reason
Review is exceptional phenomenonOnly where a grave and glaring error
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Court of Record
Power to punish for Contempt of itself
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Miscellaneous
Transfer of Cases, Appeals from one HighCourt to another
Withdrawal of cases from High Court
Precedent: Law declared by Supreme Courtbinding on all courts. (Art. 141)
Art. 142: Doing complete justice
Rule making power Interpretation of the Constitution
Power of Judicial Review (Invalidating laws
and executive actions)
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Are you aware that...
About two-thirds of our laws have not been used in
independent India.
About 10 per cent of them can be scrapped right away.
And most of the 10 per cent in use currently have so manyobsolete and conflicting provisions.
The oldest law in the country has been in operation for over
a century and half. The one sentence 1836 Bengal District
Act empowers the Bengal government to create as many
zillas as it wants. The Act still exists.
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Are you aware that... Cont
Under the Indian Sarais Act, 1867, it is a punishable offencefor inn-keepers not to offer free drinking water to passer-by.
Only about 40 per cent of our laws are in regular use.
Independent India has till now found no conceivable use forthe rest.
While India badly needs efficient laws, the time spent by thelaw-making body on the job is unbelievably little.
Parliament spends less than 0.6 per cent of a Lok Sabha dayon law-making.
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Elections take place regularly in any democracy. There are more than onehundred countries in the world in which elections take place to choose
peoples representatives. Elections are held in many countries that are notdemocratic.
But why do we need elections? Let us try to imagine a democracy without
elections. A rule of people is possible without any elections if all the peoplecan sit together everyday and take all the decisions. But, this is not possiblein any large community. Nor it is possible for everyone to have the timeand knowledge to take decisions on all matters. Therefore in mostdemocracies people rule through their representatives.
In an election the voters make many choices: They can choose who will make laws for them.
They can choose who will form the government and take major decisions.
They can choose the party whose policies will guide the government andlaw making.
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An independent Election Commission has been established to carry out and
regulate the holding of elections in India.
The Election Commission is responsible for the conduct of elections.
It maintains the Electoral Roll, supervises the nomination of candidates etc.
The electoral roll is a list of all people in the constituency who are registeredto vote in Indian Elections.
Only those people with their names on the electoral roll are allowed to vote.
The electoral roll is normally revised every year to add the names of those
who are to turn 18.
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Elections refer to choosing of a Leader in Indiainvolving political mobilization and organizationalcomplexity.
The direct cost of organizing the election of 1996 wasapproximately Rs.5,180 million.
The country has been divided into 543 Parliamentary
Constituencies.
The size of the constituencies are determined tocreate constituencies which have roughly same
population.
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The Parliament consists of President, the Lok Sabhaand the Rajya Sabha .
Although the government is headed by PM, the
Cabinet is the central decision making body of thegovernment.
Other parties can also govern along with thegoverning party if they have the confidence vote.
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The Constitution puts a limit on the size of the
Lok Sabha of 550 elected members.
There are also provisions to ensure the
representation of SCs and STs with reservedconstituencies.
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The members of the Rajya Sabha are elected indirectly.
The number of members per each state is in proportion to theirpopulation.
At present there are 233 members in the Rajya Sabha .
The Vidhan Sabha is set up to carry out the administration. Delhi and Pondicherry , also have legislative assemblies .
Elections to the Vidhan Sabhas are carried out in the samemanner as for the Lok Sabha
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Well Learn about Parliament & functions of
State & Union ministers in later units.