Comparative law is useful to someone seeking to reform their own legal system because it shows both proof of concept and relatedly can quash a "parade of horribles" analysis.
The case of the court system of India is particularly notable because it involves a legal system in a big, complicated, multi-cultural, federal county.
Of course, very few people would argue that the court system of India is superior to that of the United States.
For example, it has far too few judges for its case loads, resulting in a very slow pace of legal action (for reasons that aren't entirely clear given the civil service appointment system, although low compensation and poor working conditions may be important factors), and also has a populace that often can't afford to use it in the intended manner with competent legal counsel due to a lack of financial means.
The Indian court backlog numbers in the millions. The legal maxim justice delayed is justice denied is honored only in the breach. On average about 20% of approved judicial positions are vacant. The annual backlog increase is less than 2%. If the vacancies were filled, the backlog would decline. Minor infractions make up nearly half of pending cases.
In 2015, some 400 vacancies were reported in the 24 high courts. The Supreme Court backlog is around 65,000 cases. Some 30 million cases await resolution in various courts. The budget allocation is a 0.2 per cent of gross domestic product. The judge-population ratio is 10.5 to one million, about 20% of the recommended 50 to one million.
The government is the largest single litigant, adding cases to the docket, losing most, and then appealing to the next court. The Law Commission found that most such appeals were pointless.
Jagdev claimed that the Judiciary does not attract the best legal talent in part because of disparity in compensation. In recent years scandals have besmirched the judiciary's reputation. The sub-ordinate judiciary works in appalling conditions.
On 12 January 2012, the Supreme Court said that confidence in the judiciary was decreasing, posing a threat to the country. It acknowledged the problems of vacancies in trial courts, unwillingness of lawyers to become judges, and the failure of the apex judiciary in filling vacant HC posts. One proposal is that access to justice must be made a constitutional right requiring the executive to provide the necessary infrastructure for protecting that right. The Court also wanted the Government of India to detail the work being done by the National Mission for Justice Delivery and Legal Reforms.
Undertrials outnumber convicts in the prison population. Ordinary citizens have been imprisioned for espionage for overstaying their visa or straying across international borders, languishing in prison for years due to the slow redressal process.
To reduce pendency, 'Fast-track courts', 'Evening courts/Morning courts' were set up and met with mixed success. Mobile courts were set up to bring 'justice at the doorsteps' of litigants of judge-poor rural areas.
Lok Adalats is an informal, alternative mechanism that has been a success in tackling backlogs, especially in pre-litigation matters, settling cases before they enter the courts.
According to a report released by Centre for Public Policy Research and British Deputy High Commission "a total of 16,884 commercial disputes [are] pending in High Courts with original jurisdiction. Of these Madras High court tops with 5,865. With the number of commercial disputes growing rapidly, facilitating a seamless dispute resolution system through alternate means has become crucial."
Economists Boehm and Oberfeld calculated that the backlog costs the Indian economy several percentage points of GDP.
Also, while India's courts are arguably less politicized than U.S. courts, they are also more prone to instances of judicial corruption.
But, it is nonetheless interesting to see how it handles the issues of judicial appointments in a far less political manner (really modeled on the British system).
Some of the other notable quirks of India's court system are highlighted in the discussion below, such as the lack of a strict correspondence between what are basically state supreme courts and state boundaries, the national effect of precedents in intermediate appellate courts, its village court system based on traditional or customary law (found in many other non-European countries), its special corruption court, some of its other specialized tribunals which don't have direct parallels in U.S. law (for human rights, company law, consumer disputes, and anti-trust cases), and the limited inquisitorial features of its criminal courts (e.g. the power to call witnesses or obtain evidence sua sponte).
Also notably, India completely abolished the institution of the jury trial in 1959, even in serious criminal cases and in extremely limited classes of civil cases where jury trials have been retained in England.
I leave for another day the significant differences that exist (fairly few) in other areas of civil and criminal procedure.
Court structure and hierarchy
12. What is the general court structure and hierarchy?
The Indian judicial system is a single integrated system. The Constitution of India divides the Indian judiciary into superior judiciary (the Supreme Court and the High Courts) and the subordinate judiciary (the lower courts under the control of the High Courts).
The Supreme Court of India is the apex court of the country and sits in New Delhi. It is presided by the Chief Justice of India. There are twenty-four High Courts in the country. Each state has one High Court, although some High Courts have jurisdiction over multiple states and Union Territories. For example, the Guwahati High Court exercises jurisdiction over the states of Assam, Nagaland, Mizoram and Arunachal Pradesh, all of which are situated close to each other in the north-eastern part of India.
For administrative convenience, states are further sub-divided into districts, each of which has its own District Court. Barring a few states, the original jurisdiction for both civil and criminal cases vests with the District Court. The judicial system also consists of tribunals and commissions which are established under, and to deal with, specific statutes.
13. To what extent are lower courts bound by the decisions of higher courts?
The judicial pronouncements by the Supreme Court of India are binding precedents on all courts, judicial authorities and tribunals in India. Similarly, High Court decisions are binding on all subordinate courts, authorities and tribunals in India, unless there is a contrary decision from another High Court. If there is a contrary decision from a different High Court, the decision from the court with the larger judge bench usually prevails. District Court decisions are not binding on any other court.
14. Are there specialist courts for certain legal areas?
Under the Indian judicial system, certain traditional courts have been specifically tasked to deal with certain areas of law. District Courts usually have courts formed under specific statues, such as:
* Family courts to deal with issues relating to marriage, inheritance, guardianship of minors and maintenance.
* The Special Court of Central Bureau of Investigation to deal with cases of corruption and bribery.
* Some High Courts and District Courts, which house commercial courts which deal only with commercial matters of specified value, including matters relating to arbitration.
With the socialist aim of making legal remedies accessible and affordable to all, the Indian judicial system has constituted Lok Adalats and Gram Panchayats at the village level. These bodies apply traditional or customary laws and primarily work towards settling local disputes by using alternative dispute resolution mechanisms.
15. Are other quasi-legal authorities commonly used?
Apart from the courts, the Indian judicial system comprises tribunals, commissions and quasi-judicial authorities that derive their authority from specific statutes. These bodies include the:
* Central Administrative Tribunal, which adjudicates disputes that relate to the recruitment and conditions of service of public servants.
* National and State Human Rights Commissions for the protection of human rights.
* National Company Law Tribunal and National Company Law Appellate Tribunal, which adjudicate issues relating to company law, including insolvency and bankruptcy matters.
* Consumer disputes forums at national, state and district level to deal with consumer disputes.
* Competition Commission of India to promote and protect market competition.
* Ombudsman for banking, Insurance, Income tax and electricity matters.
* Income Tax Appellate Tribunal, Central Excise and Service Tax Appellate Tribunal and Sales Tax Appellate Tribunal to hear tax and excise matters.
Most quasi-judicial bodies oversee administrative actions and impose restrictions on administrative agencies.
16. Does the constitution provide for an independent judiciary?
There are several provisions under the Constitution of India that ensure an independent judiciary. For example:
The judges of the Supreme Court and the High Courts have secured tenure and cannot be removed from office (unless there is proven misconduct or incapacity).
The Constitution empowers the Supreme Court and the High Courts to punish any person for its contempt.
Appointments and transfers of judges of the Supreme Court and the High Courts is made through a collegium system. The collegium comprises the Chief Justice of India and a forum of four of the most senior judges of the Supreme Court. Remarkably, this system is not expressly found in the Constitution and was created by the Supreme Court while deciding a matter in 1998. Facets of an independent judiciary are found even in the subordinate judiciary, where matters relating to removal and disciplinary actions fall under the control of the High Courts.
17. How are members of the judiciary typically appointed?
Appointment
Appointment of judges up to the highest level in the subordinate judiciary are either made by the state Public Service Commissions or the High Courts. These appointments are usually made on the basis of performance in dedicated examinations (that is, the Lower Judicial Services Examination or Higher Judicial Services Examination). Judges from the subordinate judiciary are regularly promoted and some are even appointed as High Courts or Supreme Court judges.
The appointment procedure in the superior judiciary is slightly different as the appointments are not made through judicial service examinations. High Court judges are appointed either through promoting judges from the subordinate judiciary or by direct elevation of advocates. Supreme Court judges are appointed either through promotion or direct elevation of judges from the High Courts. Supreme Court and High Courts judges are appointed through a collegium system, comprising the Chief Justice of India and a forum of the four most senior judges of the Supreme Court.
Qualifications
For a person to be eligible to sit the Lower Judicial Services Examination, he or she:
* Must be a citizen of India.
* Must be graduate in law.
* Should have been enrolled or qualified to be enrolled as an advocate.
The age limit for candidates varies from state to state and is usually between 21 to 35 years.
For the Higher Judicial Services Examination, a candidate must:
* Be a graduate in law
* Have the prescribed minimum experience as an advocate (usually seven years) or as a judge.
For a person to be eligible for an appointment as a High Court judge, he or she must:
* Be an Indian citizen.
* Be under the age of 62 years.
* Have either held a judicial office in India for ten years or practised as an advocate of High Court(s) for ten years.
For a person to be eligible for an appointment as a Supreme Court judge, he or she must:
* Be an Indian citizen.
* Be under the age of 65 years.
Have been a:
* judge of a High Court for at least five years;
* an advocate of a High Court for at least ten years; or
* a distinguished jurist in the opinion of the President of India.
Litigation (civil and criminal)
18. Do the courts use an adversarial, non-adversarial or other system?
The Indian legal system is mainly adversarial. However, in certain aspects it is hybrid of adversarial and inquisitorial functions. Particularly the criminal justice system is not strictly adversarial, as some provisions in the criminal code require the judge to perform inquisitorial functions. For example, the judge will undertake active fact-finding exercises, such as:
* Directing further investigation.
* Assisting in the framing of charges.
* Calling any person as witness and procuring evidence.
From here.
Wikipedia further discusses the courts at each level as shown below. Particularly notable is that in the model of the English Court of Chancery, "Revenue Courts" have jurisdiction over many aspects of real property law that are handled by ordinary civil courts in U.S. law. India's courts also follow the British practice of having higher courts which are courts of first instance in serious civil matters in addition to being predominantly appellate courts.
Supreme Court
The Supreme Court is the highest court established by the Constitution. The Constitution states that the Supreme Court is a federal court, guardian of the Constitution, and the highest court of appeal. Articles 124 to 147 of the Constitution lay down the court's composition and jurisdiction.
Primarily, it is an appellate court that takes up appeals against judgments of the High Courts of the states and territories. It also takes writ petitions in cases of serious human rights violations or any petition filed under Article 32, which is the right to a constitutional remedy, or if a serious case involves needs immediate resolution.
The Supreme Court comprises the Chief Justice and 33 judges.
It first sat on 26 January 1950, the day India's constitution came into force, and thereafter delivered more than 24,000 reported judgements.
Proceedings are conducted in English only. The Supreme Court Rules of 1966 were framed under Article 145 of the Constitution, which exists to regulate its practices and procedures. Article 145 was amended and is governed by the Supreme Court Rules of 2013.
High courts
27 High Courts operate at the state level. Article 141 of the Constitution mandates that they are bound by the judgements and orders of the Supreme Court of India by precedence. These courts have jurisdiction over a state, a union territory or a group of states and union territories. High courts were instituted as constitutional courts under Part VI, Chapter V, Article 214 of the Constitution.
The High Courts are the principal civil courts of original jurisdiction in the state (along with the subordinate District Courts). However, High Courts civil and criminal jurisdiction applies only if subordinate courts are not authorized to try matters for lack of pecuniary or territorial jurisdiction. High Courts may enjoy original jurisdiction in certain matters if so designated in a state or federal law. For example, company law cases are instituted only in a high court.
The primary work of most High Courts consists of deciding appeals from lower courts, and writs in terms of Article 226 of the Constitution. Writ jurisdiction is also an original jurisdiction of High Courts. The precise territorial jurisdiction of each High Court varies by province.
Judges in these courts are appointed by the President after consultation with the Chief Justice of India, Chief Justice of the High Court, and the state governor. The number of judges in a court is decided by dividing the average institution of main cases during the last five years by the national average, or the average rate of disposal of main cases per judge per year in that High Court, whichever is higher.
High Courts that handle large numbers of cases have permanent benches (or a branch of the court). For litigants of remote regions, 'circuit benches' work on those days when judges visit.
District / Subordinate courts
The District Courts of India are established by state governments for every district or group of districts, taking into account the number of cases and population distribution. These courts are under administrative control of the state's High Court. Decisions are subject to the appeal to the High Court.
The district court is presided over by one District Judge appointed by the Governor with the consultation of High Court. Additional District Judges and Assistant District Judges may be appointee depending on the workload. The Additional District Judge has equivalent jurisdiction as the District Judge. The District Judge is called a "Metropolitan session judge", when he is presiding over a district court in a city which is designated a "Metropolitan area" by the state government.
The district court has appellate jurisdiction over subordinate courts on all matters. Subordinate courts, on the civil side (in ascending order) are Junior Civil Judge Court, Principal Junior Civil Judge Court, Senior Civil Judge Court (also called sub-court). Subordinate courts, on the criminal side (in ascending order) are, Second Class Judicial Magistrate Court, First Class Judicial Magistrate Court, Chief Judicial Magistrate Court. In Family Courts deal with matrimonial disputes.
Family Court and Mahila Court matters are handled by the Principal Judge. The Judges appointed to this post are from the pool of District Judges. In Maharashtra, Andhra Pradesh and some other states, judges are appointed from the pool of retired judicial officer either directly or through exam.
Executive and Revenue Court
Below the judicial hierarchy sits the executive hierarchy. Cr.P.C. empowers the Executive Court to deal with petty offences, but the power does not imply that they hold judicial power. Section 3 of CrPC clearly splits matter to be handled by both magistrates. Section 20 of CrPC empowers the State Government to appoint Executive Magistrates (EM) in every metropolitan area and in every district. It has the authority to appoint one Executive Magistrate as the District Magistrate and to appoint any EM as the ADM. Such a magistrate has the same power as enjoyed by the District Magistrate (DM).
If the office of a DM is left vacant then any officer who temporarily succeeds to the executive administration of the district exercises the same power as enjoyed by the DM. The State Government is empowered to give charge of a sub-division to the EM, who is called Sub-divisional Magistrate. The EM role generally maintain law and order under section 107–110, 133, 144, 145, and 147 of the CrPC., cancelling or granting licenses, handling land acquisition matters, or any other matter raised by state government.
Section 21 empowers state government to appoint special Executive Magistrates (Sp. EM). Under Section 20(5) of Crpc, the Commissioner of Police (CP) can be appointed as EM, but only when the district is declared by state government as a Commissionerate. The DG(P) holds the rank of CP but can't exercise power of EM (special) until his designation changes into CP. The appeal of executive court lies in the court of Session Judge or Additional Session Judge of the district or to the High Court.
Order Executive Court
3 Other Executive Magistrate
To deal with the land revenue matters, each state established a Revenue Court. These courts adjudicate matters related to:
land revenue
tenancy (ownership - in a loose sense)
property boundaries
succession
land transfers
partition of holdings
removal of encroachments, eviction of trespassers, and in some states, declaratory suits.
The Revenue Court is a quasi-judicial body and holds only limited power to deal with specific civil matters. As per Section 5(2) of Civil Procedure Code; Revenue Courts have jurisdiction to deal with suits related to rent, revenue or profits of land used for agricultural purposes, but does not include civil court matters. Therefore, certain matters of the Revenue Courts are barred from jurisdiction of Civil Courts as specified under the code. The Court of Additional Commissioner and above are appellate courts. However, it is a state controlled organization.
Generally the officers of the rank of Collector and above are from the pool of the Indian Administrative Service, while lower positions can be from either IAS or SAS and inferior to that are from the State Administrative Services.
Order Revenue [ed. appointing civil service system omitted]
1 Board of Revenue
2 Principal Revenue Commissioner
4 Additional Commissioner
5 Commissioner Land Record
6 Additional Commissioner Land Record
8 Addl. Collector
9 Chief Revenue Officer
10 Sub Divisional Officer
11 Assistant Collectors
12 Settlement Officer
13 Assistant Settlement Officer
14 Record Officer
15 Ass. Record Officer
17 Additional Tahsildars
18 Naib Tahsildars
Village courts / Panchayat / Rural Court
Village courts, Lok Adalat (people's court) or Nyaya panchayat (justice of the villages), offer alternative dispute resolution. They were recognized through the 1888 Madras Village Court Act, then developed (after 1935) in various provinces and (after independence) Indian states. The model from Gujarat State (with a judge and two assessors) was used from the 1970s onwards. In 1984 the Law Commission recommended to create Panchayats in rural areas with laymen ("having educational attainments"). The 2008 Gram Nyayalayas Act had foreseen 5,000 mobile courts in the country for judging petty civil (property cases) and criminal (up to 2 years of prison) cases. However, the Act was not enforced, with only 151 functional Gram Nyayalayas in the country (as of May 2012) against a target of 5000. The major reasons were include financial constraints, reluctance of lawyers, police and other government officials.
The Mahila Court (open access) is mentioned above only in passing but is an interesting Indian innovation:
The ‘women's court’ (mahila adalat or mahila mandal) is a fairly recent but increasingly prevalent phenomenon in contemporary India. A particular kind of alternative dispute-resolution forum specifically designed to address women's marital and related family problems, it aims to provide a safe and unthreatening environment wherein women can air their grievances, work out satisfactory settlements with husbands and in-laws, or find ways to escape their difficult situations altogether. It encourages women to resolve domestic disputes informally, rather than by resort to the state's judicatory institutions. Most women's courts are run by women's NGOs, often with financial support from foreign donor agencies or, in some cases, from governmental or semi-governmental agencies such as State Women's Commissions or Legal Aid Societies.
This paper discusses the structure and workings of some of these women's courts, based on two decades of ethnographic observations and interviews in such venues as well as on the work of other scholars who have studied similar bodies more intensively than I. It highlights some of the unique features of these ‘courts,’ shows why they are the forum of choice for so many poor women, and asks how effective they are in delivering justice to those who come to them for help.
