INDIAN JUDICIARY – (SUPREME COURT, HIGHT COURTS AND

SUBORDINATE COURTS)

Indian administration is guided by three pillars – Legislature, Executives, and Judiciary.

Indian Judiciary. In India, we have an independent judiciary. The other organs of the
government cannot interfere with the functioning of the judiciary.
The judiciary is that branch of the government that interprets the law, settles disputes and
administers justice to all citizens. The judiciary is considered the watchdog of democracy,
and also the guardian of the Constitution. For democracy to function effectively, it is
imperative to have an impartial and independent judiciary. Independence of the judiciary also
does not mean that the judiciary functions arbitrarily and without any accountability. It is
accountable to the Constitution of the country. The Constitution provides for a number of
provisions that ensure that the independence of the judiciary is maintained and protected.

1. Independent Indian Judiciary

a. It means that the other branches of the government, namely, the executive and the
legislature, does not interfere with the judiciary’s functioning.
b. The judiciary’s decision is respected and not interfered with by the other organs.
c. It also means that judges can perform their duties without fear or favour.

2. Indian Judiciary – Structure

India has a single integrated judicial system. The judiciary in India has a pyramidal structure
with the Supreme Court (SC) at the top. High Courts are below the SC, and below them are
the district and subordinate courts. The lower courts function under the direct
superintendence of the higher courts. The diagram below gives the structure and organisation
of the judicial system in the country.
Apart from the above diagram, there are also two branches of the legal system, which are:

a. Criminal Law: These deal with the committing of a crime by any citizen/entity. A
criminal case starts when the local police file a crime report. The court finally decides
on the matter.
b. Civil Law: These deal with disputes over the violation of the Fundamental Rights of a
citizen.

Supreme Court has three types of jurisdictions. They are original, appellate and advisory.
The jurisdiction of the Supreme Court is mentioned in Articles 131, 133, 136 and 143 of the
Constitution.

3. Functions of Indian Judiciary

The functions of the judiciary in India are:

a. Administration of justice: The chief function of the judiciary is to apply the law to
specific cases or in settling disputes. When a dispute is brought before the courts it
‘determines the facts’ involved through evidence presented by the contestants. The
law then proceeds to decide what law is applicable to the case and applies it. If
someone is found guilty of violating the law in the course of the trial, the court will
impose a penalty on the guilty person.
b. Creation of judge-case law: In many cases, the judges are not able to, or find it
difficult to select the appropriate law for application. In such cases, the judges decide
what the appropriate law is on the basis of their wisdom and common sense. In doing
so, judges have built up a great body of ‘judge-made law’ or ‘case law.’ As per the
doctrine of ‘stare decisis’, the previous decisions of judges are generally regarded as
binding on later judges in similar cases.
c. Guardian of the Constitution: The highest court in India, the SC, acts as the
guardian of the Constitution. The conflicts of jurisdiction between the central
government and the state governments or between the legislature and the executive
are decided by the court. Any law or executive order which violates any provision of
the constitution is declared unconstitutional or null and void by the judiciary. This is
called ‘judicial review.’ Judicial review has the merit of guaranteeing the fundamental
rights of individuals and ensuring a balance between the union and the units in a
federal state.
d. Protector of Fundamental Rights: The judiciary ensures that people’s rights are not
trampled upon by the State or any other agency. The superior courts enforce
Fundamental Rights by issuing writs.
e. Supervisory functions: The higher courts also perform the function of supervising
the subordinate courts in India.
f. Advisory functions: The SC in India performs an advisory function as well. It can
give its advisory opinions on constitutional questions. This is done in the absence of
disputes and when the executive so desires.
g. Administrative functions: Some functions of the courts are non-judicial or
administrative in nature. The courts may grant certain licenses, administer the estates
(property) of deceased persons and appoint receivers. They register marriages, appoint
guardians of minor children and lunatics.
 h. Special role in a federation: In a federal system like India’s, the judiciary also
performs the important task of settling disputes between the centre and states. It also
acts as an arbiter of disputes between states.
i. Conducting judicial enquiries: Judges normally are called to head commissions that
enquire into cases of errors or omissions on the part of public servants.

4. Civil courts have four types of jurisdiction:

a. Subject Matter Jurisdiction: It can try cases of a particular type and relate to a
particular subject.
b. Territorial Jurisdiction: It can try cases within its geographical limit, and not
beyond the territory.
c. Pecuniary Jurisdiction: Cases related to money matters, suits of monetary value.
d. Appellate Jurisdiction: This is the authority of a court to hear appeals or review a
case that has already been decided by a lower court. The Supreme Court and the High
Courts have appellate jurisdiction to hear cases that were decided by a lower court.

5. Supreme Court of India

The Supreme Court of India is the country’s highest judicial court. It is the final court of
appeal in the country. Following are the functions of Supreme Court of India.
a. It takes up appeals against the verdicts of the High Courts, other courts and tribunals.
b. It settles disputes between various government authorities, between state
governments, and between the centre and any state government.
c. It also hears matters which the President refers to it, in its advisory role.
d. The SC can also take up cases suo moto (on its own).
e. The law that SC declares is binding on all the courts in India and on the Union as well
as the state governments.

6. Supreme Court Composition

a. Including the CJI, there are 34 judges in the Supreme Court.
b. The judges sit in benches of 2 or 3 (called a Division Bench) or in benches of 5 or
more (called a Constitutional Bench) when there are matters of fundamental questions
of the law is to be decided.

7. The Procedure of the Supreme Court of India

The Supreme Court of India has powers to consult the President to regulate the practice and
procedure of the Court. The Constitutional Cases are usually decided by a bench consisting of
five judges whereas other cases are decided by a bench of at least three judges. As per the
Constitution of India, Delhi is declared as the seat of the Supreme Court of India. However,
the Chief Justice of India has the power to assign another place (s) as the seat of the Supreme
Court. This is only an optional provision and not mandatory.

8. The Supreme Court of India Judge Eligibility

As per Article 124, an Indian citizen who is below 65 years of age is eligible to be
recommended for appointment as a judge of the SC if:
a. he/she has been a judge of one or more High Courts, for at least 5 years, or
b. he/she has been an advocate in one or more High Courts for at least 10 years, or
c. he/she is in the opinion of the President, a distinguished jurist.
 9. Jurisdiction of Supreme Court of India

a. Original Jurisdiction of the SC in India: Original jurisdiction of a court refers to

a matter for which the particular court is approached first. In the case of the
Supreme Court in India, its original jurisdiction is covered under Article 131. It
involves the following cases:
i. Any dispute between the Indian Government and one or more States.
ii. Any dispute between the Indian Government and one or more States on one side and
one or more States on the other side.
iii. Any dispute between two or more States.
iv. Article 32 of the Constitution provides original jurisdiction to the SC for matters
regarding the enforcement of Fundamental Rights.
v. The SC can issue writs, directions, or orders including writs in the nature of
mandamus, habeas corpus, quo warranto, prohibition and certiorari.
vi. The SC also has the power to direct the transfer of a criminal or civil case from the
High Court in one State to the High Court in another State.
vii. It can also transfer cases from one subordinate court to another State High Court
viii. If the SC deems that cases involving the same questions of law are pending
before it and one or more High Courts, and that these are significant questions of law,
it can withdraw the cases before the High Court or Courts and dispose off all these
cases itself.
ix. The Arbitration and Conciliation Act, 1996 gives SC the authority to initiate
international commercial arbitration.

b. Appellate Jurisdiction: Under this, the Supreme Court can hear cases only
when they are appealed against a High Court order.

c. Advisory Jurisdiction: Under this, the President can request the Supreme
Court to offer its opinion on any issue of law or fact.

d. Review Jurisdiction: This is covered under Article 137 and it gives SC the
authority to review its judgements. There are two grounds on which a
review is permitted. They are as follows:
i. If there has been an apparent error on the face of record leading to the perversity of
judgement.
ii. If new evidence has been uncovered which was not available earlier despite the best
attempt by the party or out of no fault of the party.

10. Powers And Functions Of High Court

High Courts are the highest courts in a state. Presently, there are 25 High Courts in India,
with some states having a common High Court. The High Court is the highest court in a state
in India. Articles 214 to 231 in the Indian Constitution talk about the High Courts, their
organisation and powers. The Parliament can also provide for the establishment of one High
Court for two or more states. Currently, there are 25 High Courts in India.
 11. Functions of the High Court
The functions of the High Court are described in the below section under subsections such as
its jurisdiction, powers, role, etc. The various kinds of the jurisdiction of the High Court are
briefly given below:
a. Original Jurisdiction
i. The High Courts of Calcutta, Bombay and Madras have original jurisdiction in
criminal and civil cases arising within these cities.
ii. An exclusive right enjoyed by these High Courts is that they are entitled to hear civil
cases which involve property worth over Rs.20000.
iii. Regarding Fundamental Rights: They are empowered to issue writs in order to
enforce fundamental rights.
iv. With respect to other cases: All High Courts have original jurisdiction in cases that
are related to will, divorce, contempt of court and admiralty.
v. Election petitions can be heard by the High Courts.
b. Appellate Jurisdiction
i. In civil cases: an appeal can be made to the High Court against a district court’s
decision.
ii. An appeal can also be made from the subordinate court directly if the dispute involves
a value higher than Rs. 5000/- or on a question of fact or law.
iii. In criminal cases: it extends to cases decided by Sessions and Additional Sessions
Judges.
iv. If the sessions judge has awarded imprisonment for 7 years or more.
v. If the sessions judge has awarded capital punishment.
vi. The jurisdiction of the High Court extends to all cases under the State or federal laws.
vii. In constitutional cases: if the High Court certifies that a case involves a substantial
question of law.

12. High Court Powers

Apart from the above, the High Courts have several functions and powers which are
described below.
a. As a Court of Record
i. High Courts are also Courts of Record (like the Supreme Court).
ii. The records of the judgements of the High Courts can be used by
subordinate courts for deciding cases.
iii. All High Courts have the power to punish all cases of contempt by any
person or institution.
b. Administrative Powers
i. It superintends and controls all the subordinate courts.
ii. It can ask for details of proceedings from subordinate courts.
iii.It issues rules regarding the working of the subordinate courts.
iv. It can transfer any case from one court to another and can also transfer the case to
itself and decide the same.
v. It can enquire into the records or other connected documents of any subordinate court.
vi. It can appoint its administration staff and determine their salaries and allowances, and
conditions of service.

13. Power of Judicial Review

High Courts have the power of judicial review. They have the power to declare any law or
ordinance unconstitutional if it is found to be against the Indian Constitution.
 14. High Court Autonomy
The independence of the High Courts can be corroborated by the points given below:
a. Appointment of Judges: The appointment of judges of the High Courts lies within
the judiciary itself and is not connected to the legislature or the executive.
b. Tenure of the Judges: High Court judges enjoy the security of tenure till the age of
retirement, which is 62 years. A High Court cannot be removed except by an address
of the President.
c. Salaries and allowances: The High Court judges enjoy good salaries, perks and
allowances and these cannot be changed to their disadvantage except in case of a
financial emergency. The expenses of the High Court are charged on the Consolidated
Fund of the State, which is not subject to vote in the state legislature.
d. Powers: The Parliament and the state legislature cannot cut the powers and
jurisdiction of the High Court as guaranteed by the Constitution.
e. Conduct of judges: Unless a motion of impeachment has been moved, the conduct of
the High Court judges cannot be discussed in the Parliament.
f. Retirement: After retirement, High Court judges cannot hold an office of emolument
under the Government of India or that of a state. There is an exception to this clause,
however, when, with the consent of the Chief Justice of India, retired judges can be
nominated to a temporary office, and in the situation of emergencies.

15. Subordinate Judiciary

In the judicial organisation of every state, the High Court is the apex body. Below the High
Court, there are other courts that constitute the subordinate judiciary. The jurisdiction and
nomenclature of subordinate courts in the various States of the country are different. At
present, there are three or more tiers of civil and criminal courts below the High Court.

The subordinate courts are so-called because of their subordination to the state high court. In
each district of India, there are various types of subordinate or lower courts. They are:
a. Civil courts,
b. Criminal courts and
c. Revenue courts.
These Courts hear civil cases, criminal cases and revenue cases, respectively.
 Source – NIOS
Civil Courts
• Civil cases pertain to disputes between two or more persons regarding property,
breach of agreement or contract, divorce or landlord-tenant disputes.
• Civil Courts settle these disputes. They do not award any punishment for violation of
law, which is not involved in civil cases.
• The disputes relating to property, succession, ownership and other such rights come
under the jurisdiction of Civil Courts, which dispose of these cases in accordance with the
Civil Procedure Code.
To read more about Civil Courts, check the linked article.
Criminal Courts
• Criminal cases are related to the violation of laws.
• These cases involve theft, dacoity, rape, pickpocketing, physical assault, murder, etc.
These cases are filed in the lower court by the police, on behalf of the state, against the
accused.
• In such cases the accused, if found guilty, is awarded punishment like fine,
imprisonment or even death sentence.
• These cases are disposed of by the Criminal Courts in accordance with the Criminal
Procedure Code and Indian Penal Code.
To read more about Criminal Courts, check the linked article.
Revenue Courts
• Revenue courts deal with cases of land revenue in the State.
• The highest revenue court in the district is the Board of Revenue.
• Under it are the Courts of Commissioners, Collectors, Tehsildars and Assistant
Tehsildars.
• The Board of Revenue hears the final appeals against all the lower revenue courts
under it.
Structure and Jurisdiction of Subordinate Courts
• The organisational structure, jurisdiction and nomenclature of the subordinate
judiciary are laid down by the states.
• Hence, they differ slightly from state to state.
• Generally, there are three tiers of civil and criminal courts below the high court.
• The district judge is the highest judicial authority in the district. He possesses original
and appellate jurisdiction in both civil and criminal matters.
• In other words, the district judge is also the sessions judge.
• When he deals with civil cases, he is known as a district judge and when he deals with
criminal cases, he is known as a sessions judge.
• The sessions judge has the power to impose any sentence, including life imprisonment
and capital punishment (death sentence).
• However, a capital punishment passed by him is subject to confirmation by the High
Court, whether there is an appeal or not.
• In some states, Panchayat Courts try petty civil and criminal cases. They are variously
known as Nyaya Panchayat, Gram Kutchery, Adalati Panchayat, Panchayat Adalat and so on.
Constitutional Provisions – Subordinate Courts
Articles 233 to 237 in Part VI of the Indian Constitution has provisions to regulate the
organisation of subordinate courts and to ensure their independence from the executive.

Articles related to Subordinate Courts

Article No. Subject Matter

Article 233 Appointment of district judges

Article Validation of appointments of, and judgements, etc., delivered by certain district
233A judges

Article 234 Recruitment of persons other than district judges to the judicial service

Article 235 Control over subordinate courts

Article 236 Interpretation

Article 237 Application of the provisions of this chapter to a certain class or classes of
Magistrates

The 20th Amendment Act of 1966 added a new Article – 233A, which retrospectively
validated the appointment of certain district judges as well as the judgements delivered by
them.
Appointment of District Judges
• The judges of subordinate courts are appointed by the Governor in consultation with
the Chief Justice of the High Court of the concerned State.
• Qualifications of district judge:
•
• He should not already be in the service of the Central or the state government.
• He should have been an advocate or a pleader for seven years.
• He should be recommended by the high court for appointment.
Appointment of Other Judges
• The appointment of persons (other than district judges) to the judicial service of a
state are made by the governor of the state after consultation with the State Public Service
Commission and the high court.
• In practice, the State Public Service Commission conducts a competitive examination
for recruitment to the judicial service of the state.
Control over Subordinate Courts
• The control over district courts and other subordinate courts including posting,
promotion and leave of persons belonging to the judicial service of a state and holding any
post inferior to the post of district judge is vested in the high court.
Interpretation
• The expression ‘district judge’ includes judge of a city civil court, additional district
judge, joint district judge, assistant district judge, chief judge of a small cause court, chief
presidency magistrate, additional chief presidency magistrate, sessions judge, additional
sessions judge and assistant sessions judge.
• The expression ‘judicial service’ means a service consisting exclusively of persons
intended to fill the post of district judge and other civil judicial posts inferior to the post of
the district judge.
Application of the above Provisions to Certain Magistrates
• The Governor may direct that the above-mentioned provisions relating to persons in
the state judicial service would apply to any class or classes of magistrates in the state.
Challenges
• The infrastructural development of Courts needs urgent attention.
• Inadequacy of infrastructure facilities in District and Subordinate courts has remained
a major bottleneck in the judicial system, largely contributing to the accumulation of arrears.
• Judicial infrastructure is a crucial component, which had been ignored for a long time,
especially in respect of Subordinate Courts. It is the responsibility of both the Central
Government and State Governments to treat this as an area of prime concern to improve
justice delivery.
• The shortage of judicial personnel at Subordinate Courts is also a matter of concern.
• Some major reasons leading to the high pendency of cases in Subordinate Courts are:
• Poor Judge population ratio,
• Prolonged and costly litigation caused by procedures and lawyers interests,
• Poor infrastructure,
• Shortage of judicial personnel,
• Weak alternate dispute resolution mechanisms and so on.