MODERN JUDICIARY

The Constitution of India which forms the basis of all Governmental forms, organs and
institutions, establishes a federal form of government. A federal government requires double sets
of executive, legislature and judiciary; one each for the Centre and the States. But our
Constitution makes an exception to this general rule in so far as it establishes single set of
judiciary which administers both Central as well as State laws.

Our judiciary consists of a Supreme Court at its top, High Courts in the middle and the
subordinate courts at the bottom. The Supreme Court is the creation of the Constitution therefore,
its composition, powers, jurisdiction, etc. all are given exhaustively in the Constitution itself. But
that is not the case with the High Courts and the subordinate courts and with the exception of few
basic matters the Constitution leaves them to be governed by the existing laws or the laws which
may be passed in future.

THE SUPREME COURT

The Supreme Court, with its seat in New Delhi, is the highest court of the land. It consists of one
Chief Justice and thirty other judges to be appointed by the President of India from amongst the
Indian citizens who have been in one or more High Courts, as judges for 5 years or advocates for
ten years or are distinguished jurists in the opinion of the President. A judge holds his office upto
the age of sixty-five years unless he resigns earlier or is removed. The jurisdiction and powers
of the Supreme Court are very wide.

Original:
(i) Exclusive original jurisdiction- in any dispute between the Centre and the States or the States
interest.
(ii) Original jurisdiction but not exclusive- to enforce fundamental rights

Appellate:
Ordinarily, it has the jurisdiction to hear appeals against the decisions of the High Courts, if
(a) in any proceedings substantive question as to the interpretation of the Constitution is
involved, or
(b) in civil proceeding if the case involves substantial question of law of general importance and
the High Court thinks that the question needs Supreme Court ruling,
(c) a criminal case is, fit to be heard by the Supreme Court.

Advisory:
The President may seek the advice of the Supreme Court in any matter of public importance and
also in the matters relating to treaties etc. executed before the commencement of the
Constitution.

Apart from these specific jurisdictions the Supreme Court has the power to review its own
decision. The Supreme Court is a Court of record having the power to punish for its contempt.
The law declared by it is binding on all courts within the territory of India.
Apart from its power to hear appeals against the decisions of the High Courts, the Supreme Court
has no administrative or supervisory powers over them or over other lower courts. However,
recently it has been empowered to transfer or withdraw cases from the High Courts.

THE HIGH COURTS

According to the provisions of the Constitution there must be one High Court for each State but a
common High Court may also be established for two or more States and also the jurisdiction of
any High Court may be extended to any Union Territory. The Parliament may by law establish
separate High Courts also for the Union territories.

Every High Court consists of a Chief Justice and such other judges as the President may from
time to time deem necessary to appoint. An Indian citizen who has been for ten years either in
the judicial service or an advocate in any High Court can be appointed as a judge and holds this
office till the age of sixty two years unless he resigns earlier or is removed.

The Constitution also confers on all High Courts the power of issuing the five writs for the
enforcement of fundamental rights.

Every High Court is a Court of Record and can punish for its contempt. It has the power of
superintendence over all courts within its territorial jurisdiction. The decisions of a High Court
and the laws laid down by it are binding upon all courts subordinate to that High Court, although
for other High Courts and the courts subordinate to such High Courts, these decisions or laws
have only persuasive value (to believe in reasoning).

SUBORDINATE COURTS

With respect to subordinate courts, the Constitution only mentions that the district judges in the
States shall be appointed by the Governor in consultation with the High Court of the State and
the judicial servants below the rank of the district judge shall be appointed by the Governor in
accordance with the rules made in consultation with the Public Service Commission and the
High Court of that State.

The High Court has been given full control over the District Courts and the subordinate courts.
Beyond this the constitution and organisation of the large number of courts spread over the
country has been left as it existed at the time of the commencement of the Constitution.

NYAYA PANCHAYATS
With the advent of independence the village panchayats, which had strong roots in our ancient
politico-legal system , but which got lost, was revived. A provision was made in Article 40 of the
Constitution asking the State to take steps to organise village panchayats and give them such
powers and authority as may be necessary to enable them to function as units of self government.
The Nyaya Panchayats (NP) are the judicial component of the panchayat system, They are the
lowest ring of our judiciary created for the dispensation of justice at the local rural level.

Their composition and powers differ from State to State, however, they are generally based on a
system of nomination or election or a combination of both and have jurisdiction to decide petty
civil and criminal matters. They provide inexpensive and expeditious justice through informal
and simple procedures including compromise and conciliation between the parties wherever it is
possible.

SEPARATION OF JUDICIARY AND EXECUTIVE

There is a theory of separation of powers according to which rights of the people are better
protected if legislative, executive and judicial powers are separated. During the British rule such
separation was not done for long even in the highest judiciary such as Sadar Adalats and at the
lower judiciary such separation, particularly in the field of criminal matters, could not be created
even upto the independence irrespective of many calls for such separation.

Accordingly there was an introduction of Directive Principles of State Policy in the Constitution
to separate the judiciary from the executive. Constitution fully ensures that the Supreme Court
and the High Courts are in no way under the influence of the executive. Even the appointments
and transfers of the judges are also free from executive control. Even at the level of lower
judiciary district courts and below so far as the civil side of the judiciary was concerned it had
been separated from the executive almost from the time of Lord Cornwallis in 1793 onwards.

The Criminal Procedure Code of 1973 was enacted by the Parliament on the criminal side. The
new Code provides for the uniform separation of the judicial magistrates from the executive
throughout the country. The judges of the courts of session, judicial magistrates of the first and
second classes and the metropolitan magistrates are appointed by the respective High Courts.
The High Courts also appoint from amongst the magistrates of the first class a chief judicial
magistrate and an additional chief judicial magistrate and in metropolitan areas a chief
metropolitan magistrate and an additional chief metropolitan magistrate. The High Courts may
also appoint special magistrates on the request of the Central or State Governments. The
executive magistrates, including the district magistrate, additional district magistrates and special
magistrates, are appointed by the concerned State Governments.

All the offences under the Indian Penal Code are tried only by a judicial magistrate of the first or
second class or by a metropolitan magistrate.

An executive magistrate tries no offence, and performs only non-judicial functions such as arrest
of criminals, security or keeping peace and good behaviour, removal of public nuisance; dealing
with urgent cases of nuisance or apprehended danger, etc. Thus the judiciary in criminal matters
has been completely and uniformly separated from the executive throughout the country.