By Rabia Mehta:
The Indian Judiciary is a remnant of the legal system established by the British Raj and based on the English common law. It consists of customs, precedents, and legislature. The Constitution of India, adopted on 26th January 1950, lays down the law of the land. The Indian Constitution was drafted with elements from Irish, French, American and British laws and also adheres to the human rights code set forth by the United Nations. The Supreme Court is the highest court in the land, followed by the various High Courts and District level courts. Members of the Judiciary are independent of the legislature and the executive branch of government.
Historically, India was governed by the Arthashastra and Manusmriti — two ancient texts that provided legal guidance. The land was ruled by princely states, with the king being the supreme leader. Villages had panchayats that acted as the judiciary to resolve disputes. Laws were based on religion, with Muslims and Hindus adhering to guidelines provided by their respective religious texts and leaders. After colonization by the British, a new system of common law was introduced.
The Constitution of India came into effect on January 26th, 1950, and happens to be the longest constitution of any nation, comprising of 444 articles, 94 amendments and 117,369 words. It is mainly based on the Government of India Act 1935. It contains provisions on the relationship between the Federal and State governments and the rights of a citizen. It also has certain unique directives, such as the unique power of only the federal government to make amendments to the constitution and the power given to the federal government in times of emergency rule.
Modern law practices in India are always evolving. The Parliament has the power to make laws, as is the State. However, laws set forth by the Parliament take precedence over state laws in case of a conflict. Courts have the power to administer both Central and State laws. Law enforcement in India is governed by the Internal Affairs Ministry (Home Ministry). The bulk of law enforcement is a responsibility of the State, with the police force being its basic enforcement agency. The central government has the Central Bureau of Investigations and the National Investigation Agency, amongst others.
The judiciary follows a hierarchy. At the apex is the Supreme Court of India, below which are the High Courts in each state or territory. Below the High Courts lies a system of Subordinate Courts, below which are small Panchayat Courts that govern civil issues and petty crimes within a village or a group of villages. Each state is divided into judicial districts that are presided over by District and Sessions judges, below whom are Munsifs, Civil judges, and Sub-Judges. At the highest end, the Supreme Court has a Chief Justice and a group of other judges appointed by the President.
The President also appoints the Attorney General, who is responsible for advising the government of legal matters. The Attorney General has the right of audience in all courts of India. Below him are the Solicitor General and Additional Solicitors General.
There are various branches in Indian law and the judiciary that deal with different aspects of life.
Criminal Law in India is laid down in the Indian Penal Code of 1860, drafted by the British. The Code of Criminal Procedures, 1973, provides the procedures of law enforcement. Jury trials were abolished in 1960, and Capital punishment is still legal in India.
Contract Law, also called the mercantile law, governs the entrance into contracts and breach of contracts. It applies to all states except Jammu & Kashmir. It is laid down in the Indian Contract Act of September 1, 1872, and is the most used act of legal agreements in India.
Labour Law in India is one of the most complex and restrictive in the world for employers, and well in need of reform. It has around fifty-five national laws and many more on the State level. It has both collective labour laws (such as the Industrial Disputes Act of 1947) and individual labour laws (such as the Minimum Wages Act of 1948).
Tort Law is hallmarked by the liability it puts on states, as described in Article 300 of the Indian Constitution. It mainly governs custodial deaths, police atrocities, encounter killings, illegal detention and disappearances.
Tax Law is a complex set of laws in India. The Income Tax Act of 1961 allows the Central government to levy income tax; the Central government also levies customs and excise duties. The State is in charge of the Sales tax, in accordance with VAT regulations.
Trust Law is codified in the Indian Trusts Act of 1882. It does not recognise “double ownership”, and a beneficiary of trust property is not the equitable owner of the property. It applies to all states except Jammu and Kashmir and the Andaman and Nicobar Islands.
Family Laws in India are complex and religion-based. Muslims follow Islamic (Sharia) laws, Hindus have a somewhat less-defined set of family codes which also govern Sikhs, Jains and Buddhists, and Christians are governed under Christian Law, which has Canonical origins. There is no uniform civil code in most states (except the state of Goa, which has a common law for marriages, divorces and adoptions) and most states do not require the compulsory registration of marriages and divorces, although recent reforms have been aimed in bringing about a more uniform set of regulations regardless of religion. Recent changes have affected custody laws, succession laws, domestic violence issues, child marriage, and adoption laws.
Nationality Law is codified under the Citizenship Act of 1955 and contains provisions on citizenship issues. Although dual citizenship is prohibited, the Parliament passed a law in 2004 allowing a limited dual citizenship called the Overseas Citizen of India (OCI) in which, however, the OCI has no involvement in governance or voting.
The Supreme Court was created in 1950. The first judges appointed were Chief Justice Harilal J. Kania, and Justices Saiyid Fazl Ali, M. Patanjali Sastri, Mehr Chand Mahajan, Bijan Kumar Mukherjea and S.R.Das. In present day, the Supreme Court has a chief justice and twenty-eight other judges appointed by the President of India. In order to ensure the independence of the court, the Constitution provides that judges, once appointed, cannot be removed except by the President and a 2/3 majority in both Houses of Parliament. Judges retire at the age of 65, and are debarred from practicing in any court of law in India.
Besides being the highest appellate court in the land, the Supreme Court is also the enforcer and interpreter of the Constitution. It hears appeals against decisions of the High courts, writ petitions regarding human rights violations, and petitions filed under Article 32 that guarantees a right to Constitutional remedies. It also has a special advisory jurisdiction over cases presented by the President of India under Article 143 of the Constitution.
The Supreme Court Registry is headed by the Registrar General. Advocates that can practice law before the Supreme Court are generally divided into 3 categories:
1. Senior Advocates — those that are appointed as such by the Supreme Court or any High Court, owing to their abilities and standing with the Bar, or special knowledge of the law.
2. Advocate-On-Record — only these are allowed to file any document or appearance for a party before the Supreme Court.
3. Other Advocates — these advocates can appear and argue before the Court but are not entitled to file any documents or matters.
English is the only language used in the business of the Supreme Court.
Issues with the Judiciary
The average time spent in court across all cases is 4 minutes 55 seconds per case; still, the Indian court system has severe backlogs. The Delhi High Court is purportedly 466 years behind schedule. Cases take decades to resolve and often to the satisfaction of none. The backlog of cases is a result of a shortage of judges. India’s population-to-judge ratio is one of the poorest in the world. Corruption further adds to the problem. According to Transparency International, an NGO that studies and gathers statistics on socio-political corruption, judicial corruption in India is attributable to factors such as “delays in the disposal of cases, shortage of judges and complex procedures, all of which are exacerbated by a preponderance of new laws”. The majority of cases stuck in mid-process are that of motor vehicle violations and petty crimes.
Rabia Mehta was born in Bombay but raised in the US. She studied Industrial/Organizational Psychology but she plans on pursuing a second career in the near future. An avid reader, she currently dabbles with writing and editing, and devotes her spare time to her beloved pets. She calls the San Francisco Bay Area home but travels to Asia frequently. The article was previously published at Indian Law Radar.
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