Legal Studies Chapter 1
UNIT 1: JUDICIARY
Jasmine Tiwari XII-J
The Constitution of India lays out the framework of the Indian judicial
system. India has adopted a federal system of government which
distributes the law enacting power between the Centre and the States. Yet
the Constitution establishes a single integrated system of judiciary
consisting of courts to administer both Central and State laws.
Q1. What is the Structure & Hierarchy of Courts in India?
1. SUPREME COURT OF INDIA
● The Supreme Court of India came into being on 28 January 1950.
● It replaced both the Federal Court of India and the Judicial
Committee of the Privy Council which were at the apex of the Indian
court system, under the colonial era.
● The Constitution of India as it stood in 1950 envisaged a Supreme Court
with a Chief Justice and 7 Judges.
● The Parliament was granted the power to increase the number of judges
in the coming years.
● At present, the total strength of the Supreme Court is 31 judges
including the Chief Justice of India. (Bill of 2019 increased the judicial
strength to 34, there are currently 30 judges)
● The Supreme Court located in N ew Delhi is the apex court of India.
2. HIGH COURTS
● The Supreme Court is followed by various High Courts at the state level
which function for one or more number of states.
● India consists of 24 High Courts at the state and union territory level.
● Each High Court has jurisdiction over a state, a union territory or a
group of states and union territories.
● The Madras High Court in Chennai, Bombay High Court in Mumbai,
Calcutta High Court in Kolkata and the Allahabad High Court in
Allahabad are the first four High Courts in India.
3. DISTRICT & SUB-ORDINATE COURTS
● The Courts that function below the High Courts are popularly known as
the lower Courts.
● They consist of district and sub-ordinate courts. Each state is divided
into judicial districts presided over by a 'District (1) and Sessions
Judge (2)'.
● The District Court also holds appellate jurisdiction and supervision
over all sub-ordinate Courts below it.*
● Munsiff Courts are the lowest in terms of handling matters of civil
nature and function below the sub-ordinate Courts. Their pecuniary
limits, meaning the Court's ability to hear matters upto a particular claim
for money, are notified by respective State Governments.
(1) The judge is known as a 'District Judge' when she/he presides over a civil
case.
a. The district judge is also called a 'Metropolitan Sessions Judge'
when she/he is presiding over a district court in a city which is
designated as a metropolitan area by the State government.
b. District judges may be working with Additional District judges,
depending upon the judicial workload.
c. The district judge is the highest judicial authority below a High
Court judge.
d. On the Civil side, the sub-ordinate Courts below the District Court
include (descending order):*
Senior Civil Judge Courts (also called sub-Courts)
Principal Junior Civil Judge Court
Junior Civil Judge Court
(2) A 'Sessions Judge' when he presides over a criminal case.
a. Sub-ordinate Courts on the Criminal side include (descending
order):*
Chief Judicial Magistrate Court
First Class Judicial Magistrate Court
Second Class Judicial Magistrates Court
4. TRIBUNALS
● To supplement the functioning of the Courts, there exist specialised
tribunals to adjudicate sector specific claims such as labour, consumer,
service matter disputes.
● Indian judiciary for dispute resolution is also characterised by numerous
semi or quasi-judicial bodies (because they may consist of
administrative officers or judges without a legal background). Yet
they function in their judicial capacity and hear relevant legal matters
and settle claims between the parties.
● Tribunals have been constituted under specific constitutional mandate
enshrined in the Constitution of India or through legal enactments, e.g. a
law passed by the legislature. Their creation aims at increasing efficiency
in resolving disputes and reducing the burden on courts.
● Some of these tribunals function with regulators. Regulators are
specialised government agencies that oversee the law and order
compliance in the relevant government sectors. For example, one of the
tribunals TDSAT functions alongside the regulator, TRAI (Telecom
Regulatory Authority of India) in formulating laws and policy for
resolving telecom disputes in India. Therefore these tribunals
complement and supplement the role of courts in maintaining law and
justice in the society.
● Examples:
1. Central Administrative Tribunal (CAT) for resolving the
grievances and disputes of central government employees
2. State Administrative Tribunals (SAT) for state government
employees
3. Telecom Dispute Settlement Appellate Tribunal (TDSAT) for
resolving disputes in the telecom sector in India
4. the National Green Tribunal (NGT) for disputes involving
environmental issues.
Q2. What are benches? Are benches set up in India? Discuss the benefits
and demerits of having regional benches for Supreme Courts in India.
1. A group of judges sitting together on a legal matter in the Court constitutes
a bench. The lawyers constitute the members at the bar.
2. A division bench comprises two or three judges.
3. A constitutional bench comprises five or more judges and may even extend to
thirteen judges.
4. India has no court of appeal unlike the UK. The Law Commission has, in its
227th report, recommended setting up four regional benches of the Supreme
Court in Delhi, Chennai/Hyderabad, Kolkata and Mumbai. However, the
Full Court of the Supreme Court has rejected the Law Commission's
suggestion for establishing a Constitutional Bench in Delhi and Cassation
Benches in the four regions.
5. The Indian Supreme Court hears more than 50,000 cases a year. The UK and
US Supreme Courts, on the other hand, hear less than 100 cases a year on
average. India, unlike the US, has a unified judicial system. So each S
tate
does not have a separate hierarchy of courts that adjudicate state laws.
Q3. What are the salient features of the Indian Judiciary?
1. INDIA AS A COMMON LAW JURISDICTION
● Taking its precedence from the British tradition of 'common law', India has
adopted a similar model.
● Under this scheme of the common law system, the decisions, orders and
judgments developed by the judges in India help in the creation and
development of laws and legal principles, which becomes binding precedents
for all 4 subordinate courts in the hierarchy.
● Therefore, courts play a vital role in creating laws, especially where gaps in
law exist, and the legislature or executive have failed to enact laws. Thus, apart
from administering civil and criminal justice, courts and judges serve a vital
function in the federal set up of the country.
● Opposed to this model, is a concept of civil law system followed in countries
such as Germany, Russia, and Continental Europe. The main difference
between common and civil law is with respect to the source of law. Under
common law, the judiciary can make laws through judicial decisions of
courts; however under civil law, only the legislature or executive has the
power to create laws and rules.
● This salient feature of Indian judiciary in following a common law model
further strengthens the role of courts in India.
2. ADVERSIAL MODEL OF DISPUTE RESOLUTION
● Courts in India follow the adversarial system of adjudication as opposed to
the inquisitorial model followed in several civil law countries.
● In an adversarial model, the role of lawyers representing the party becomes
vital. Lawyers of the opposing parties present their cases before a neutral judge
who in turn provides a decision based on the merits of the case, as presented by
the lawyers.
● In the inquisitorial system of law, on the other hand, judges are more
pro-active in adjudicating the matter. Rather than acting as neutral judges, they
have rights to inquire and probe into the matter, much like a police.
● Here the role of lawyers representing the party and the role of judge
cumulatively becomes important in determining the manner in which a civil
case or criminal trial proceeds.
Q4. Who is Attorney General of India?
1. Article 76 of the constitution mentions that he/she is the highest law
officer of India. As a chief legal advisor to the government of India,
he advises the union government on all legal matters.
2. He also is the primary lawyer representing Union Government in the
Supreme Court of India. The Attorney General, like an Advocate
General of a State, is not supposed to be a political appointee, in spirit,
but this is not the case in practice.
Q5. Who appoints Attorney General of India?
President of India appoints Attorney general of India. There are the
following qualifications:
1. He should be an Indian Citizen.
2. He must have either completed 5 years in the High Court of any
Indian state as a judge or 10 years in High Court as an advocate.
3. He may be an eminent jurist too, in the eye of the President.
Q6. What is the term of the Attorney General’s office?
There is no fixed term for the Attorney General of India. The Constitution mentions
no specified tenure of Attorney General. Similarly, the Constitution also does not
mention the procedure and ground of his removal.
1. He can be removed by the President at any time.
2. He c an quit by submitting his resignation only to the President.
3. Since he is appointed by the President on the advice of the Council of
Ministers, conventionally he is removed when the council is dissolved or
replaced.
Q7. What is the function of Law Officers in India?
1. The discussion on the structure of Indian judiciary would remain incomplete
without an explanation of law offices and officers appointed by the central and
state governments in India.
2. Certain law offices at the Union and State level exist to advise the executive
wing of the government. These law officers are taken up by law officers, who
derive their mandate either from the Constitution or other statutory enactments
and rules. The Attorney General is the first legal officer of the country (highest
law officer of India)
Q8. What is the role of Attorney General of India?
Being the Chief Law Officer of the country, the Attorney General of India has
to perform the following duties:
1. Whichever legal matters are referred to him by the President, he advises
the Union government upon the same.
2. The President keeps on referring to him legal matters that suit his
interest and the Attorney General has to advise on those too.
3. Apart from what the President refers to, he also performs the duties
mentioned in the Constitution.
4. The three duties that are assigned to him by the President are:
● In any legal case where the government of India is related to, the
Attorney General has to appear in the Supreme Court on its
behalf.
● He has to represent the Union Government in any reference
made by the president to the Supreme Court under Article 143 of
the Constitution.
● He also appears in the High Court if any case is related to the
Government of India
Q9. What are the limitations on the Attorney General?
To avoid conflict of duty, there are a few limitations that are posted on the
Attorney General which he should keep in mind while performing his duties:
1. He should not advise or hold a brief against the Government of India.
2. He should not advise or hold a brief i n cases in which he is called upon
to advise or appear for the Government of India.
3. He should not defend accused persons in criminal prosecutions without
the permission of the Government of India.
4. He should not accept appointment as a director in any company or
corporation without the permission of the Government of India.
Q10. What privileges does the Attorney General of India have?
1. He can be part of any court in the Indian Territory.
2. He got the right to speak and to take part in the proceedings of both the
Houses of Parliament or their joint sitting and any committee of the
Parliament of which he may be named a member.
3. He has no right to vote when he participates in the proceedings of the
Indian Parliament.
4. Similar to a Member of Parliament, he also enjoys all powers related to
immunities and privileges.
5. He is not considered as a government servant.
6. He can practise privately too as he is not debarred from private legal
practice.
Q11. Who is a solicitor general?
1. In discharge of his functions, the Attorney General is assisted by a
Solicitor General and four Additional Solicitors General.
2. The position of the Solicitor General and Additional Solicitors General is
not recognised in the Constitution.
3. They are governed through rules enacted by the Parliament.
Q12. Who is the advocate general? What are the functions of an advocate
general? How is the advocate general appointed?
Similar to the Attorney General of India, the position of Advocate General
exists at the state level. An Advocate General is a senior law officer who acts
as a legal adviser to the State Government.
APPOINTMENT
1. According to Article 165 of the Constitution, the Advocate General is
appointed by the Governor of the respective state.
2. The qualification required for appointment as an Advocate General is
similar to that of a judge of a High Court.
3. The office of an Advocate General is held during the pleasure of the
Governor, who also determines the nature of remunerations for the
Advocate General.
4. Additional Advocate Generals are also appointed to assist the office of
the Advocate General.
FUNCTIONS
The Advocate General performs duties of a legal character including
representing the State before the courts either through himself/herself or
through the law officers or pleaders appointed by the State.
1 Mark Questions on the
Attorney General of India
1. Which article in the Indian Constitution deals with the Attorney
General of India?
Article 76 deals with the office of the Attorney General of India.
2. Who appoints the Attorney General of India?
The President of India appoints the Attorney General on the advice of
the council of ministers.
3. Can the Attorney General of India participate in proceedings of
Indian Parliament?
Yes, he can, although he has no right to vote in the proceedings.
4. How is the Attorney General of India different from the Chief Justice
of India?
The Attorney General of India is responsible for the amendment and
enforcement of laws. However, the Chief Justice of India is
responsible to conduct the court hearings before the law has to be
enforced.
5. What is the right of audience?
Right of attorney General to appear in court proceedings.
