ACKNOWLEGDEMENT

With profound gratitude and sense of indebtedness I place on record my sincerest thanks to

Mrs. Ruchi Agarwal, Indian Institute of Legal Studies, for her invaluable guidance, sound

advice and affectionate attitude during the course of my studies.

I have no hesitation in saying that she molded raw clay into whatever I am through her

incessant efforts and keen interest shown throughout my academic pursuit. It is due to her

patient guidance that I have been able to complete the task.

I would also thank the Indian institute of Legal Studies Library for the wealth of information

therein. I also express my regards to the Library staff for cooperating and making available

the books for this project research paper.

Finally, I thank my beloved parents for supporting me morally and guiding me throughout the

project work.

Date: 16th Nov, 2017 Vivek Kr. Chowdhury

LL.B. 3 Yrs. Semester I

TABLE OF CONTENTS
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PAGE

ACKNOWLEDGMENT 1

RESEARCH METHODOLOGY 3

INTRODUCTION 5

CHAPTERS

Chapter I Structure of Courts in India 6

Chapter II Role & Function of Judiciary in India 11

CONCLUSION 13

BIBLIOGRAPHY 15

RESEARCH METHODOLOGY

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Research Aim and Objective

The research work is concerned with the topic Judicial Role in Indian Federation. The
basic objective behind the concerned research is to succeed in attaining the knowledge
regarding the important role played by Indian Judiciary in Indian Federation.

Scope and Limitation

The scope of the concerned research is limited to analysis of various provisions of

Constitution of India, 1950.

Research Question

The question that emerges through the research whirls on the analysis as to how the Indian
Judiciary is contributing in Indian Federation.

Research Hypothesis

The general held view that the role of Judiciary in Indian Federation must be given a ve3ry
wide margin of appreciation because of the post independence activism of Judiciary in India.

Methodology

The research methodology in the concerned research clearly reflects Doctrinal, as well as
Analytical Research. The stated methods were considered for the given research; because of
its aptness towards the topic. The doctrinal method of research is preferred as compared to
non-doctrinal method of research. The paper is analytical as well as descriptive in nature.

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Mode of Citation

The Uniform Mode of Citation has been adopted throughout the course of the paper.

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INTRODUCTION

The Indian Judiciary administers a common law system of legal jurisdiction, in

which customs, precedents and legislation, all codify the law of the land. It has in fact,
inherited the legacy of the legal system established by the then colonial powers and the
princely states since the mid-19th century, and has partly retained characteristics of practices
from the ancient and medieval times.

There are various levels of judiciary in India different types of courts, each with varying
powers depending on the tier and jurisdiction bestowed upon them. They form a strict
hierarchy of importance, in line with the order of the courts in which they sit, with
the Supreme Court of India at the top, followed by High Courts of respective states with
district judges sitting in District Courts and Magistrates of Second Class and Civil Judge
(Junior Division) at the bottom.

Faith reposed on the judiciary by the people of India, stands on a much higher rung than on
any other organ of the State. This is because of the judiciary being considered as the land of
last resort. Judiciary has always indulged itself when it has found that the illumination of the
Indian Constitution has started losing its sheen. Constitution stands at the pinnacle of the
pyramid, under which everything done by State to diverge from its reach can be tested by the
Indian judiciary. As the ultimate guardian of the rights of the people of this populous land,
Indian courts have found themselves at the helm of affairs, in dealing with the State
machinery. Judicial review, when undertaken in consonance with the Indian Constitution,
brings realisation to the hopes and aspirations of millions. Inheritance of powers, does not
come without limits. Judicial restraint forms part and parcel of judicial review. Under the
mandate of the Indian Constitution, courts cannot sit to harmonise the functions of different
organs of the State. Their role gets restricted in providing access to those who bring to light
the darkness springing out State actions. This darkness can only be tested under the parasol of
Indian Constitution. True realisation of the Preamble of the Constitution, which represents the
knot of all the Articles of the Constitution, comes home only when each organ of the State
works in conformity within the horizons set down for their limits.

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CHAPTER I

STRUCTURE OF COURTS IN INDIA

The Government of India has three different independent branches namely the Executive, the
Legislative and the Judiciary. The Indian judicial system was formed by the British during
their colonial rule in the country. This system is known as the Common Law System in which
the judges develop the laws with their judgments, orders and decisions. The different types of
courts form the different levels of judiciary in the country. The apex court of India is the
Supreme Court, located in New Delhi, followed by the high courts in different states. The
high courts are followed by the district courts and subordinate courts which are also known as
the lower courts.

Supreme Court of India

The Supreme Court of India came into being on 28 January 1950 and substituted the Judicial
Committee of the Privy Council and the Federal Court of India which were the apex legal
system under the colonial rule in India. There is one Chief Justice and 30 other judges in the
Supreme Court who are appointed by the Indian President. These judges retire after the
attainment of the age of 65 years. The apex court works extensively for the protection of the
fundamental rights of the Indian citizens. It is also a supreme authority as it settles the
disputes within several governments of the country. It also has an authority to review any
judgement or order earlier passed by it and can also transfer cases from one high court to
another and from one district court to another.

High Courts

The supreme judicial powers at the state level lie with the high courts of India. There are 24
high courts in the country which hold jurisdiction over a state, union territory or a group of
union territories or states. Being established in 1862, Calcutta High Court is the oldest high
court in India. Being the appellate authority of state or group of states, the high courts have
similar authorities and powers like that of the apex court, except for the difference of
territorial jurisdiction of high courts which is varied. The high courts may also have original

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jurisdiction in certain cases if permitted under the federal law system. There are lower courts
- civil or criminal, and tribunals which function under the high courts. All the high courts
come under the jurisdiction of Supreme Court of India.

Following is the list of the 24 high courts of India:

High Court of Judicature at Hyderabad (Andhra Pradesh and Telangana)
High Court of Judicature at Allahabad (Uttar Pradesh)

Bombay High Court (Maharashtra, Dadra and Nagar Haveli, Goa and Daman and
Diu)

Calcutta High Court (West Bengal and Andaman and Nicobar Islands)

Chhattisgarh High Court

Delhi High Court (National Capital Territory of Delhi)

Gujarat High Court

Gauhati High Court (Assam, Nagaland, Mizoram and Arunachal Pradesh)

Himachal Pradesh High Court

Jammu and Kashmir High Court

Jharkhand High Court

Karnataka High Court

Kerala High Court (Kerala and Lakshadweep)

Madras High Court (Tamil Nadu and Puducherry)

Madhya Pradesh High Court

Meghalaya High Court

Manipur High Court

Orissa High Court (Odisha)

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Patna High Court (Bihar)

Punjab and Haryana High Court (Punjab, Haryana and Chandigarh)

Rajasthan High Court

Sikkim High Court

Uttarakhand High Court

Tripura High Court

District and Subordinate Courts

The district and the subordinate courts are the courts below the high courts. These courts
administer jurisdiction at the district level in India. The district courts are at the top of all the
subordinate courts but fall under the administrative control of the state high court to which
that district belongs to. The jurisdiction in the districts of the states is presided over by
District and Sessions Judge. The judge is referred to as a District Judge when he presides over
the civil cases and as a Sessions Judge when he presides over criminal cases. He is addressed
as a Metropolitan Sessions Judge when he presides over a district court in a city which is
recognised as a metropolitan city or area by the state government. The District Judge is also
the highest judicial authority after the High Court Judge.

The district courts also hold jurisdiction over the subordinate courts. For handling civil cases,
the subordinate courts, in ascending order, are Junior Civil Judge Court, Principal Junior
Civil Judge Court, Senior Civil Judge Courts. For handling criminal cases the ascending
order of the subordinate courts is Second Class Judicial Magistrates Court, First Class
Judicial magistrate Court and Chief Judicial Magistrate Court.

Tribunal

In general a tribunal is a person or an institution with an authority to act judicially even if it is

not referred to as a tribunal in its title. For instance, a lawyer appearing before court even if
there is only one sitting judge, he could also call the judge as their 'tribunal'.
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According to the notification dated 8 October 2012, uploaded on Supreme Court of India
website, there are 19 Tribunals:
Appellate Tribunal for Electricity (ATE)
Armed Force Tribunal

Authority for Advance Rulings

Central Electricity Regulatory Commission (CERC)

Central Administrative Tribunal

Company Law Board

Competition Commission of India (CCI)

Competition Appellate Tribunal (CAT)

Copyright Board

Customs Excise And Service Tax Appellate Tribunal

Cyber Appellate Tribunal

Employees Provident Fund Appellate Tribunal

Income Tax Appellate Tribunal

Insurance Regulatory and Development Authority (IRDA)

Intellectual Property Appellate Board

National Green Tribunal

Securities and Exchange Board of India (SEBI)

Telecom Disputes Settlement & Appellate Tribunal (TDSAT)

Telecom Regulatory Authority of India (TRAI)

Appointments of Judges

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The Constitution of India lays down the rules for the appointment of the judges of the
Supreme Court, High Courts and District Courts. The judges of the Supreme Court are
appointed by the President of India in consultation with the Chief Justice. Their appointment
is held under a collegium system which is a group of the Chief Justice and four senior judges
of the court. Similarly, for high courts, the President in consultation with the Chief Justice,
Governor of the State and the Chief Justice of the concerned High Court appoints the judges.
The eligibility for the judge demands a person to be a citizen of India. He must have served
as an advocate for at least five years or as a judge of any high court for ten years to become a
Supreme Court Judge. For a high court judge it is necessary that a person must have been an
advocate in any high court for a minimum period of ten years.

A judge can be removed from his position only on the grounds of misconduct or by the order
of the President. A Supreme Court Judge can only be removed after a notice is signed by at
least 50 members of the Rajya Sabha or 100 members of the Lok Sabha.
Fast Track Courts

The fast track courts (FTC) in India were aimed at clearing the backlog of cases which were
pending in the district and the session courts. These courts function on the similar procedures
as session and trial courts. At the initial stage, the fast track courts were to look into the long-
pending cases but later they were directed to look after specific cases especially for crimes
against children and women. The scheme of fast track courts was recommended by the
Eleventh Finance Commission. Under this scheme, the government sanctioned a sum of Rs.
502.90 crores to set up 1734 FTCs in the country. As per the Ministry of Law and Justice, by
the end of March 2011, these courts had resolved 32.34 lakh cases. However, since their
inception, the number of functioning courts has marginally reduced every year.

Lok Adalats

The concept of Lok Adalat is based on the system of alternative dispute resolution (ADR).
They are based on the Gandhian principles of Gram Panchayats or Panch Parmeshwar. "Lok"
stands for "people" and the meaning of "Adalat" is court and therefore this institution in
general means "People's Court". The Lok Adalats are held by the several committees or

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authorities such as District Authority, State Authority, High Court Legal Services Committee,
Supreme Court Legal Services and Taluk Legal Services Committee. These Lok Adalats are
efficient to handle different cases such as motor accident compensation cases, matrimonial
and family disputes, land acquisition disputes and partition claims, etc.

The judiciary plays a pivotal role in the country by maintaining and administering the laws. It
not only administers justice but also protects the rights of the citizens of the country.
Judiciary interprets the laws and acts as a custodian of the Constitution. Courts, tribunals and
regulators together work and form this integrated system for the benefit of the nation.

CHAPTER- II

ROLE AND FUNCTIONS OF JUDICIARY IN INDIA

The Judiciary in India performs various important role and functions which do not remain
confined within the traditional jurisdiction of Civil and Criminal:

1. Prevention of violation of law: In case of violation of law, a suit is filed against the
offender. The judge hears both sides and decides whether there has been a break of the law. In
case of violation of law, the judiciary establishes justice by providing redress and punishing
the offender.

2. Making of new law: The judges, by way of interpreting the existing laws, make new
laws. The judiciary can follow precedents established in previous decisions; it can also
overrule such precedents, and thereby, makes new law.

3. Decides on constitutional questions: The highest federal Court, namely the Supreme
Court, decides constitutional questions. If there is any constitutional conflict or dispute
between the Union and the States or among different States, the dispute is brought to the
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federal Court who decides and acts as the guardian of the federal constitution. There are
hundreds of such constitutional cases decided by the Indian Judiciary, Gopalan v. the State of
Madras, Golak Nath v. State of Punjab are few examples.

4. Interprets the constitution and Laws: In addition to adjudication, the responsibility of

safeguarding and interpreting the constitution and law rests on the judiciary. In the United
States the power of the interpretation is absolute as expressed in the words of Chief Justice
Charles Evan Hughes: We are under a constitution but the constitution is what the judges say
it is. But the Indian Court does not enjoy the vast power in this area.

5. Administrative functions: The judges perform certain executive functions. Appointments

of officers and servants, maintenance of records, administration of staff etc. are performed by
the judiciary. Superintendence over lower courts is another function of the judiciary.

6. Advisory function: The highest court of the country sometimes gives advices to the
executive and the legislature on constitutional points, if sought for. Thus the Judiciary has
advisory functions too. If it appears that a question of law or fact has arisen, it may be
referred to the judiciary for its advice.

7. Protection of fundamental rights: The Judiciary acts as a protector of rights of the

citizens guaranteed by the law of the land and the constitution. The court can declare any law
which transgresses a fundamental right as invalid. In India the judiciary has the power to
issue writs in the name of habeas corpus, prohibition, mandamus, quo warranto and certiorari.

8. Guardian of the constitution: The Judiciary is regarded as the guardian of the

constitution. In federal States this function is discharged by the application of the power of
judicial review. The Supreme Court of India enjoys limited power of judicial review in
invalidating laws made by Parliament or State Legislatures.

Importance of the Judiciary: The importance of the judiciary in a democratic society can
hardly be exaggerated. Judiciary is a part of the democratic process. Judiciary not only
administers justice, it protects the rights of the citizens and it acts as the interpreter and
guardian of the constitution. In many states the judiciary enjoys the power of judicial review
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by virtue of which the judiciary decides the constitutional validity of the laws enacted or of
the decree issued. It can invalidate such laws and decrees which are not constitutional.

CONCLUSION

In this research project the research is found his hypothesis correct. When India became
independent, the drafters of the Constitution took every step to draw Montesquieus
philosophy of independence of organs of the State in the Indian Constitution. Though no
specific provision was maintained in the Indian Constitution, the State under the cover of
Article 50 of the Indian Constitution was obligated to maintain independence of the judiciary
from the executive. The judiciary, the executive and the legislatives were given different
fields in the Indian Constitution and their functions were demarcated. The narrative of their
domains runs across different sketches of the Indian Constitution. It was the executive and the
legislature, who were dictated to respect and prosper the cause of fundamental rights. The
Indian judiciary was given the uphill task of upholding the right of constitutional remedies.
Chairman of the Drafting Committee of the Constitution, Dr B.R. Ambedkar, aptly quoted
this recourse to judicial authorities for upholding the right to constitutional remedies as the
heart and soul of the Indian Constitution. Keeping the mandate of the Indian Constitution, the
Indian judiciary time and again has also held that wield of judicial review forms the basic
structure of the Constitution. In this light, what remains essential to be demarcated is that
when, how and in what stretch, the power of judicial review should be exercised by the
judiciary.

Policies set down by the legislature and the executives lie in the domain of both the organs.
On the yardstick of constitutional law, what is the limit, which the Indian judiciary has been
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exercising while foraying into the unchartered territories of judicial review, so as to canalise
the domain of the other two organs of the State, has been confabulated across different tables.
The magic wand of judicial review calls for an interference only when patently manifest farce
is played on the Indian Constitution. Powers, when used on the stilts of justification, result in
redefinition of its ambit, whereas, inappropriate use of its refulgence departs the sheen of its
glory. The stories of indulgence with the powers of judicial review have also been as igniting
as has been the growth of Supreme Court of India. From Supreme Court of India to
Supreme Court for India, the Court has shown immaculate balance on the tightrope of
equity, justice and good conscience, for delivering to we the people. Baton of illumination
passed by the Supreme Court on the appreciation of demarcation between the different
streams of State, has undoubtedly delineated, what, where and how its interference becomes
necessitated, to constitutionalise the policy initiatives taken by the other two organs of the
State.

Conceptual basis of judicial review emerges from the perennial debate between
constitutionalism and democracy. Constitutionalism presumes that Constitution can override
the decision-making process. Whereas, democracy is pillared on the principle that the
elected body of people has the right to make decisions for the polity. Indian Constitution,
however, by declaring India as a democratic republic, in its reach engraves the supremacy
of the Constitution over the legislature and guarantees that the human rights are protected not
only by self-restraint of the majority, but also by constitutional control over the
majority. Decisive role to interpret the Constitution, being entrusted with the judiciary; the
question to be answered in this article is the determination of its limits.

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BIBLIOGRAPHY

Primary Sources

Statutes: The Constitution of India, 1950.

Secondary Sources

Books:
V.N. Shukla, CONSTITUTION OF INDIA (12th ed., 2013).
D.D.Basu, INTRODUCTION TO THE CONSTITUION OF INDIA (21st ed.,2014).
D.D. Basu, COMMENTARY ON THE CONSTITUTION OF INDIA (Vol I , 8 th
ed.)
P. M. Bakshi, THE CONSTITUITION OF INDIA (12th ed., 2014).
Dr. J.N. Pandey, THE CONSTITUTIONAL LAW OF INDIA (50th ed.,2013).
R. S. Bedi, THE CONSTITUTION OF INDIA (10th ed., 2013).
S.C. Kashyap, FRAMING OF INDIAS CONSTITUTION (2nd ed.,2008).

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