The range of judicial review recognized in the superior judiciary in India is perhaps the widest and the most extensive known to the world of law.-illustrate &explain
1. Introduction:
The judiciary of India draws extensively from Western legal traditions in its outline of the principles of liberal democracy. It is distinguished from many Western constitutions, however, in its elaboration of principles reflecting the aspirations to end the inequities of traditional social relations and enhance the social welfare of the population. According to constitutional scholar Granville Austin, probably no other nation’s constitution “has provided so much impetus toward changing and rebuilding society for the common good.” Since its enactment, the constitution has fostered a steady concentration of power in the central government–especially the Office of the Prime Minister. This centralization has occurred in the face of the increasing assertiveness of an array of ethnic and caste groups across Indian society. Increasingly, the government has responded to the resulting tensions by resorting to the formidable array of authoritarian powers provided by the constitution. Together with the public’s perception of pervasive corruption among India’s politicians, the state’s centralization of authority and increasing resort to coercive power have eroded its legitimacy. However, a new assertiveness shown by the Supreme Court and the Election Commission suggests that the remaining checks and balances among the country’s political institutions continue to support the resilience of Indian democracy.
2. Indian Judiciary:
Entering into international treaties and agreements is one of the attributes of State sovereignty. Though International law requires a State to carry out its international obligations undertaken by it by ratifying international treaties, but it does not govern the process of incorporating international law into municipal law. In fact, the States follow. Different processes of incorporating international law into their domestic legal system, depending on their constitutional provisions in this respect. Thus, the process of implementation of international law at national level varies in different countries. The divergent State practices pertaining to incorporation of international law into municipal law have been explained by two schools of law monist and dualist. India follows the dualist theory for the implementation of international law at domestic level. [1]International treaties do not automatically become part of national law in India. It, therefore, requires the legislation to be made by the Parliament for the implementation of international law in India. In this respect, Indian judiciary, though not empowered to make legislations, has interpreted India’s obligations under international law into the constitutional provisions relating to implementation of international law in pronouncing its decision in a case concerning issues of international law, Through “judicial activism? the Indian judiciary has played a proactive role in implementing India’s international obligations under International treaties, especially in the field of human rights and environmental law”.
3. over view of Indian judicial system:
The Supreme Court of India is the highest court of law; the entire judicial system of the country is controlled by it. Article 124 of the Constitution provides for the establishment and the composition of the Supreme Court. Article 131 to 140 deeds with the powers of the Supreme Court. The Supreme Court of India has three kinds of jurisdiction:
1) Original jurisdiction
2) Appellate jurisdiction
3) Advisory jurisdiction.
Under Article 131 of the Constitution, the Supreme Court has Original .jurisdiction in any [2]dispute arising between Union and one or more States and between two or more states. Such a dispute should, however, involve some question of law or fact on which the existence or extent of legal rights depends. Under Article 133 and 134, an appeal may lie to the Supreme Court in any Civil or criminal proceeding of a High Court. The advisory function of the Supreme Court is also very important. If there arises any ambiguity regarding the interpretation of a clause of the constitution or certain constitutional problem arises, the President can refer the same to the Supreme Court for its expert opinion,
The Supreme Court of India is a court of record which means that the records of its decisions and proceedings are preserved and published. The decisions of the Supreme Court are binding on all the courts of India. The Supreme Court also has powers to review its own judgment or order. The Supreme Court of India is the highest judiciary body, responsible to ensure justice to all. The Supreme Court under Article 142 of the Constitution has the constitutional mandate to pass such order as may be necessary for doing complete justice in any case before it. All authorities, civil or judicial are under obligation to follow such orders.
In Indian democracy, the Supreme Court plays important role of safeguarding the fundamental rights of citizens which includes providing fair justice also. Justice which is the soul of a democratic society must be administered without fear or favor. Integrity, Impartiality and Intelligence are some of the important characteristic independent judiciary in a democratic setup.
The Government also provides funds for the smooth functioning of the courts. By regulating the flow of funds, the Government controls the capacities of courts directly. Better equipped courts with better and sufficient staff can deliver justice faster and more efficiently. Justice being a concurrent subject, both the Central and State governments are responsible for providing funds. The government indirectly controls even the process of trial through its control on funding.
[3]No doubt the courts are duty bound to provide, fair and expeditious justice. The points of efficiency are many times in conflict. The increasing workload of the courts raises the matter of writing and publishing of judicial proceedings, decision and orders. The existing practice of writing and reporting judicial proceedings, decisions and orders needs to be reviewed carefully in order to enhance the efficiency of the courts. A very alarming situation the Indian judiciary faces today is the burgeoning arrear of pending cases, not only with the lower courts, but also with the Supreme Court. Delay in disposal of cases frustrates the very purpose of justice. Delayed justice is denied justice. Delay creates frustration and results in loss of confidence among the general mass. A sense of despair and frustration is inevitable in any individual, who unfortunately entangles in litigation. There is no certainty of proved of getting the final justice. In civil cases, the minimum time is supposed to be ten to fifteen years. What is the sense of having such a judicial system, which delivers justice after such a long period? In many cases, after the death of the original plaintiff, Even If a judgment is passed by a lower court, an appeal can be filed in high court as well as in Supreme Court.
4. Courts Structure:
India has a quasi-federal structure with 29 States further sub-divided into about 601 administrative Districts. The Judicial system however has a unified structure. The Supreme Court, the High Courts and the lower Courts constitute a single Judiciary. Broadly there is a three – tier division.
Each District has a District Court and each State a High Court. The Supreme Court of India is the Apex Court. Each State has its own laws constituting Courts subordinate to the District Courts. Besides, a number of judicial Tribunals have been set up in specialized areas. The significant Tribunals are: Company Law Board; Monopolistic and Restrictive Trade Practices Commission; Securities Appellate Tribunal; Consumer Protection Forum; Board for Industrial and Financial Reconstruction; Customs and Excise Control Tribunal; Tax Tribunal; etc. These Tribunals function under the supervisory jurisdiction of the High Court where they may be situated.
5. The Judiciary:
The Indian judiciary has a reputation of being independent and non-partisan. Judges are not appointed on political considerations. They enjoy a high standing in society.
6. The Bar:
India has a unified all India Bar and an advocate enrolled with any State Bar Council can practice and appear in any court of the land including the Supreme Court of India. However for doing any acting work in the Supreme Court a qualifying examination (called an ‘Advocate on Record’ exam) needs to be cleared.
Foreign lawyers are not permitted to appear in Courts (unless qualified), though they can appear in arbitrations.
7. Practice and Procedure:
The influence of the British Judicial System continues in significant aspects. The official language for Court proceedings in the High Court & the Supreme Court is English. Lawyers don a gown and a band as part of their uniform and Judges are addressed as “My Lord”.
The procedural law of the land as well as most commercial and corporate laws is modeled on English laws. English case law is often referred to and relied upon both by lawyers and judges. As in England, a certain class of litigation lawyers is designated as “Senior Advocates”. They do not deal with clients directly and take instructions only through solicitors. Certain lawyers however, follow a mixed practice i.e., both plead and act in relation to court matters. There is a great tradition and emphasis on oral arguments. Counsels are seldom restrained in oral arguments and complex hearings may well take days of arguments to conclude. Specialization is relatively a new phenomenon. Most lawyers have a wide-ranging practice.
8. Directive Principles of State Policy
An important feature of the constitution is the Directive Principles of State Policy. Although the Directive Principles are asserted to be “fundamental in the governance of the country,” they are not legally enforceable. Instead, they are guidelines for creating a social order characterized by social, economic, and political justice, liberty, equality, and fraternity as enunciated in the constitution’s preamble.
The Directive Principles also urge the nation to develop a uniform civil code and offer free legal aid to all citizens. They urge measures to maintain the separation of the judiciary from the executive and direct the government to organize village panchayats to function as units of self-government. This latter objective was advanced by the Seventy-third Amendment and the Seventy-fourth Amendment in December 1992. The Directive Principles also order that India should endeavor to protect and improve the environment and protect monuments and places of historical interest.
The Forty-second Amendment, which came into force in January 1977, attempted to raise the status of the [4]Directive Principles by stating that no law implementing any of the Directive Principles could be declared unconstitutional on the grounds that it violated any of the Fundamental Rights. The amendment simultaneously stated that laws prohibiting “antinational activities” or the formation of “antinational associations” could not be invalidated because they infringed on any of the Fundamental Rights. It added a new section to the constitution on
9. Conclusion:
The Indian Judicial System is one of the oldest legal systems in the world today. It is part of the inheritance India received from the British after more than 200 years of their Colonial rule, and the same is obvious from the many similarities the Indian legal system shares with the English Legal System. The frame work of the current legal system has been laid down by the Indian Constitution and the judicial system derives its powers from it. The Constitution of India is the supreme law of the country, the fountain source of law in India. It came into effect on 26 January 1950 and is the world’s longest written constitution. It not only laid the framework of Indian judicial system, but has also laid out the powers, duties, procedures and structure of the various branches of the Government at the Union and State levels. Moreover, it also has defined the fundamental rights & duties of the people and the directive principles which are the duties of the State.
10. Reference:
1. M.C. Mehta v. Union of India, (2001) 3 SCC 756: AIR 2001 SC 1948; Vellore Citizens’ Welfare Forum v. Union of India, (1996) 5 SCC 647: AIR 1996 SC 2715.
2. UpendraBaxi, Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India, 4 Third worldlegalStudies 107, 108-11 (1985)
3. Surya Deva, Public Interest Litigation in India: A Quest to Achieve the Impossible, in public interestlitigation in Asia 57 (2011).
4. Francis Coralie Mullin v. Administrator, Union Territory of Delhi, (1981) 1 SCC 608; HussainaraKhatoon (1) v. Home Secretary, State of Bihar, (1980) 1 SCC 81.
5. The administration of Justice in Medieval India, by M.B. Amhad, p. 272, quoting Briggs,. Rise of the Muhammendan Power in India, Volume I, p.272
6. Rosencranz A, Shyam Divan and Martha L. Noble (1991), Law and Policy in India – Cases, Materials and Statutes, Tripathi, Bombay.
7. BhatnagarRakesh (2007) Supreme Court rules against abuse of PIL, Times of India , New Delhi, December 12, 2007, pg.
8. See for example Bunsha Dionne (2009) Villagers near Tarapur Industrial belt reel under ecological disaster, Times of India Bombay, November 3, 2009 pg. 5
9. This is a constitutional power under Arts. 129 and Art.142. §§ 4 and 15 of the Contempt of Courts Act, 1971 provide for the substantive provisions with respect to the contempt of court.
10. Vishaka v. State of Rajasthan (1997) 6 SCC 241; BodhisattwaGautam v. SubhraChakraborty (1996) 1 SCC 490.
11. People’s Union for Democratic Rights v. Union of India, (1982) 3 SCC 235: AIR 1982 SC 1473.
[1]Marc Galanter, Why the Haves Come Out Ahead: Speculations on the Limits of Legal Change, 9 (1) lAw And SoCieTy Review 165 (1974).
[2]Surya Deva, Public Interest Litigation in India: A Quest to Achieve the Impossible, in puBliCinTeReSTliTiGATion in ASiA 57 (2011).).
[3]BandhuaMuktiMorcha v. Union of India, (1984) 3 SCC 161: AIR 1984 SC 802
[4] 6Bandhua MuktiMorcha v. Union of India, (1984) 3 SCC 161: AIR 1984 SC 802.