Judicial system in India: Hierarchy of criminal courts

Reading time: 6-8 minutes.

Judiciary is one of the important pillars of democracy. Judicial system or the court system in India consist of Supreme Court, Highs Courts, District Courts or subordinate courts, and constitutional courts. The constitution is the supreme source of law in India and these laws are enforced by the judicial system or these courts, which are considered as the watchdog of the Indian Constitution. The court could make decisions and these decisions are binding on the citizens as well as the government. The judgements given by the courts are considered as the law of the land.

The Constitution of India came into force from 26th January, 1950 and it declared Supreme court as the highest court of appeal in India retaining the practices and characteristics of the company courts or the courts of British India. Chapter 5 (articles 124-147) in Part V of the Indian constitution deals with the Union Judiciary i.e. the Supreme Court and chapter 5-6 (articles 214-237) in Part VI deals with state judiciary i.e. High Courts and Subordinate Courts respectively. The Constitution enumerates the working, powers, jurisdiction and appointments to the court.

Our Constitution also provides for an independent judicial system which means the other two branches i.e. the legislative and the executives do not have any direct control over the judiciary. Independent judiciary means that the judges and the institute of judiciary are free form any kind of influence whether externally or internally. Independence of judiciary is necessary to ensure a system of checks and balances within different branches of government. People should have faith in justice delivery system of their country and this faith could be reassured by way of establishing a powerful and independent judicial system.

There is a defined hierarchy in the Indian judicial system each having its own powers and jurisdictions as provided by the Constitution. This hierarchy may be different for civil and criminal cases.

In this article we will be studying the hierarchy of criminal courts and constitutional courts

  1. Supreme Court: The Supreme court is the highest and final court of appeal under the Constitution of India.

The Apex Court has the following extensive powers: –

  1. Article 32 of the Indian Constitution confers the power of issuing writ to the Supreme Court
  2. It is the court of Record.
  3. It has power to punish for contempt under Article129;
  4. The SC has original Jurisdiction under Article131;
  5. It is the highest Court of Appeal under purview of Articles 132,133,134 & 136;
  6. Law declared by the Supreme Court is binding on all courts in India according to article 141
  7. It has advisory Jurisdiction under Article143 of the Indian Constitution.

2. High Court: – In India, we have different High Courts in states and union territories, which along with the Supreme Court, comprise India’s judicial system. Each High Court has jurisdiction over a State, a Union territory or a Group of States and Union territories. It is responsible for the entire administration of justice in the State.

Following are the powers exercised by High Courts: –

  1. It is the court of Record.
  2. It has power to punish for contempt under Article 215 of the Constitution;
  3. High Court has original Jurisdiction in civil and criminal matters;
  4. It has appellate jurisdiction in respect of criminal and civil cases decided by Subordinate courts in the State;
  5. It has revisional jurisdiction conferred under the Civil Procedure Code,1908 and Criminal Procedure Code, 1973;
  6. It has Writ jurisdiction under Article 226 of the Indian Constitution as well as the administrative Jurisdiction over subordinate courts in the State.

3. Court of Session: – In India, there are district courts under different State governments in India for each and every district or for one or more districts together taking into account the number of cases, population distribution in the district. District Judges: – (I) District Judges; (ii) Additional District Judge (iii) Principal Judge, Additional Principal Judge and Judges of City Civil and Sessions Court, Mumbai. (iv) Chief Judge and Additional Chief Judges of Court of Small Causes. Assistant Session Judge: – Senior Civil Judges: – (I) Chief Metropolitan Magistrate; (ii) Additional Chief Metropolitan Magistrates; (iii) Judges of Court of Small Causes and Metropolitan Magistrates; (iv) Civil Judges, Senior Division.

At the district level, the District Judge or Additional District judge exercises both original and appellate jurisdiction in both civil and criminal matters. The territorial and pecuniary jurisdiction in civil matters is usually set in concerned State enactments on the subject of civil courts. On the criminal side, jurisdiction is exclusively derived from the criminal procedure code, 1973. As per this code, the maximum sentence a Sessions Judge may award to a convict is capital punishment.

4. Judicial Magistrate of First Class and in metropolitan area Metropolitan Magistrate; Chief Judicial Magistrate: – Judicial Magistrates are appointed and controlled by the High Court and discharge judicial functions. Under section 11 (3) of the Code of Criminal Procedure, 1973, the High Court may confer the powers of judicial magistrate of the First Class or of the Second Class on any member of the Judicial Service of the State, functioning as a Judge in a Civil Court.

5. Judicial Magistrate of Second Class: – Judicial Magistrates are appointed and controlled by the High Court and discharge judicial functions.

Critical analysis:

This hierarchy of the court is necessary for the easy functioning of the judiciary in a country like India, where there are millions of cases pending before the court, to ensure speedy justice to the citizens.

However, this hierarchy has its own drawbacks which are

  • Unreasonable appeals to the higher courts: people can appeal to a higher court if they are not convinced with the order of the previous court. In such a case, even the offenders appeal to the higher court just for pendency of suit and to decrease their sentence. This may cause inappropriate burden upon the higher courts, which may cause delayed justice.
  • Less faith in lower courts: when the upper court overrule the decision given by the lower courts, people tend to lose faith in them and they this may affect the lower courts adversely
  • Fault in appointments to the higher judiciary: appointment of judges the higher judiciary from the lower ones receives lot of contradictions. There is no proper and reliable procedure of appointments. The appointing authority engages in corruption and nepotism many times which results in flawed appointments
  • Corruption: The problem of corruption in judiciary has taken many forms. It has to be taken a more serious note of, than in any other branch, and cannot be excused on the grounds that judges are bound to be affected sooner or later by general phenomenon. Corruption works in insidious ways. Favoring the form of lawyers which send briefs to the judges’ relatives, if they are practicing in the same or other court or courts, favoring the juniors or other associates of the Judges’ kith and kin, trying to be popular with the dominant section of the bar to earn their praise, trying to favor lawyers and law firms with a view to earn briefs or arbitration or opinion work after retirement as some to the damaging modes of corruption. This may happen because of their will to reach to the apex court sooner.

Constitutional courts

Constitutional courts are the bodies established to review the constitution and to check the constitutionality of the new legislations and ordinances. This is an independent body assigned the work of reviewing the existing legislation and the new ones. It could declare the laws inconsistent with the constitution as null and void.

Austria was the first country to set up a different constitutional court in 1919. There are total 63 countries which have separate constitutional court. Though in major countries such as the USA, they do not have separate constitutional courts but instead delegated such authority to their usual court system. In India too, Supreme court has been delegated with the powers of reviewing the legislations and act as constitutional court.

Conclusion

In India, the judicial system works in already established hierarchical system, which has proved to be an efficient system over the years though we may encounter some issues in it. These issues could be resolved over time with appropriate legislations and rules and could not be regarded as an impediment to the proper functioning of Indian judiciary.    

Author: Ekta from Indian Law Society’s (ILS) Law College, Pune.

Editor: Tamanna Gupta from RGNUL, Patiala

Explained: Curative Petition

Reading time: 6-8 minutes.

Curative petition, which is considerably new in the field of law, is currently making headlines. The judicial instrument, which is considered as the last resort available to the aggrieved party in the journey of justice, is often faced with appreciation and criticism alike. For some, it is the last window of opportunity to be heard while for others it is an unnecessary tool devised to go against the power of judiciary, especially the Supreme Court.

Recently, the petition has been used in the country’s landmark 2012 Delhi Gang rape and murder Nirbhaya case, where two convicts filed the curative petition after the Patiala house courts awarded death sentence to four convicts in its hearing on 7 January 2019.

Following the verdict, the two convicts – Vinay Sharma and Mukesh Singh, filed curative petition to ensure that the court reviews its judgement and provides respite to them. This was the last legal recourse available to the convicts which had been dismissed by the court on January 14, 2020.

However, the same was dismissed by the Bench comprising of N.V. Ramana, Arun Mishra, Rohinton Fali Nariman, R. Banumathi And Ashok Bhushan on the grounds that it did not contain any merits and no case was made out within the parameters indicated in the decision of this Court in Rupa Ashok Hurra vs. Ashok Hurra & Another.

The article seeks to explain the concept of curative petition and legal concepts surrounding it.

What is a Curative Petition?

It is a redressal-seeking mechanism which is the final resort by the aggrieved party to receive justice in the court of law, that is, the resort available for redressal of grievances after the dismissal of review petition having the same grounds as curative petition. The jurisprudence behind the mechanism of curative petition is to thwart miscarriage of law and order and ensure smooth functioning of justice system.

The legal requirements regarding the petition are narrow in scope and hence it is accepted only in rare cases. Generally such petitions are not heard in open court and might be heard in judge’s chamber.

The concept of petition is based on the Latin maxim “actus curiae neminem gravabit” which means that the act of the Court shall prejudice no one. It is based on the idea that the court has to undo the wrong done to a party.

The reason for its creation is to address the loopholes in the justice mechanism and cure the lapses. It ensures that everyone is equally heard and given chance to represent themselves before court of law. It also protects petitioners against corruption and biases of the system. It is a review of the order and not a matter of right. The requirements have to be fulfilled to ensure that the petition is allowed, heard and then accepted by the Bench.

Legal provisions involved

The Apex court of the country has laid down some guidelines which are required to be fulfilled in the curative petitions, which are:

  • The petitioner has to prove before the court that there was serous violation of principles of natural justice.
  • There was presumed bias of the judge that adversely affected him. The judgement was favoured by prejudices and had various loopholes.
  • The curative petition can only be filed after dismissal of review petition which was based on the same grounds as curative one.
  • The aforementioned requirements are valid only if certified by a senior lawyer.
  • The petition has to be sent to three senior most judges and judges of the bench who passed the judgement affecting the petition.
  • If majority of judges agree that the petition is admissible and requires hearing, it is sent to the same bench which dismissed the petition.
  • It is the discretion of the court to impose exemplary costs if petitioner’s plea lacks merit.
  • There is no time limit for filing a curative petition.

The concept of curative petition is based on Article 137 of the Constitution which provides that “subject to provisions of any law and rules made under Article 145, the Supreme Court has the power to review any judgment pronounced or order made by it.” Article 145 is related to procedures and practices of the court.

Landmark judgement

The idea of Curative petition was conceptualized by the Supreme Court of India in the landmark case Rupa Ashok Hurra vs. Ashok Hurra & Anr.  The concept was developed by the apex court of the country to prevent exploitation of power and ensure fair delivery of justice. The issue was whether a person could claim any relief after the final verdict of the court has been pronounced and the review petition has been dismissed.

The case was referred to a constitutional bench of three judges and the matter of contention was “whether a writ petition under Article 32 of the Constitution can be maintained to question the validity of a judgment of this Court after the petition for review of the said judgment has been dismissed”.

The court held that a petition is considered when the principles of natural justices are violated and in order to remedy the same, the petition is considered to be curative. The court in the aforementioned case stated that “in order to prevent abuse of its process and to cure gross miscarriage of justice, it may reconsider its judgements in exercise of its inherent powers”.  Hence the Court devised the mechanism of ‘curative’ petition.

 Advantages

  • Prevention against the bias: It is an effective tool against the possible bias of the judicial system and Judges.
  • It provides a way to be heard if unheard and not given fair chance of representation in court.
  • It prevents any fallacy that could arise in the procedure followed or pronouncing of verdict.

Disadvantages

  • It makes the judicial process lengthy and cumbersome as it is an additional stage in any case.
  • It goes against the powers of the Supreme Court which is an esteemed institution and questions its credibility.

Conclusion

Justice, like air, is important for all in society. Judges of any court are not gods and are not infallible. They are bound to make errors at some level or the other. The decision given by the apex court is final and binding and cannot be reviewed.

There is no intra appeal against SC’s verdict. Therefore to ensure fair functioning of the judicial system the concept of curative petition was incorporated to correct any fallacy that could arise in the order passed by the Supreme Court.

Author: Sakshi Sethi from Rajiv Gandhi National University Of Law, Patiala.

Editor: Ismat Hena from Faculty of Law, Jamia Millia Islamia.