Judiciary : Composition, Structure and Function

Union Judiciary : The Supreme Court ; its role and powers

The Supreme Court is the highest court of The Indian Republic.  Judiciary, the third organ of the government, has an important role to play in the governance. It settles the disputes, interprets laws, protects fundamental rights and acts as guardian of the Constitution. India has a single unified and integrated judicial system and that the Supreme Court is the highest court in India.

The  promulgation  of  Regulating  Act  of  1773  by  the  King  of  England paved the way for establishment of the Supreme Court of Judicature at Calcutta. The Letters of Patent was issued  on 26 March  1774 to establish  the  Supreme Court  of  Judicature  at  Calcutta,  as  a  Court  of  Record,  with  full  power  & authority  to  hear  and  determine  all  complaints  for  any  crimes  and  also  to entertain, hear and determine any suits or actions against any of His Majesty’s subjects  in  Bengal,  Bihar  and  Orissa.  The  Supreme  Courts  at  Madras  and Bombay was established by King George – III on 26 December 1800 and on 8 December 1823 respectively.

Federal Court of India was established under the Government of India Act 1935. The Federal Court  had  jurisdiction  to  solve  disputes  between  provinces  and  federal  states and  hear  appeal  against  Judgements  from  High  Courts.

After  India  attained independence in 1947, the Constitution of India came into being on 26 January 1950. The Supreme Court of India also came into existence and its first sitting was held on 28 January 1950.

The Chief Justice and other judges of the Supreme Court are appointed by the President of India. While appointing the Chief Justice, the President is constitutionally required to consult such other judges of the Supreme Court as he deems proper, but outgoing Chief Justice is always consulted. Normally, the senior most judge of the Supreme Court is appointed as the Chief Justice of India, although there is no constitutional requirement to do so. While appointing other judges, the President is bound to consult the Chief Justice and other senior judges, if he deems proper.

The original Constitution of 1950 envisaged a Supreme Court with a Chief Justice and 7 puisne Judges – leaving it to Parliament to increase this number.

According to the Constitution of India, the role of the Supreme Court is that of a federal court, guardian of the Constitution and the highest court of appeal. Articles 124 to 147 of the Constitution of India lay down the composition and jurisdiction of the Supreme Court of India. Primarily, it is an appellate court which takes up appeals against judgments of the High Courts of the states and territories.

The Supreme Court is a Court of Record. It has two implications. All its decisions and judgments are cited as precedents in all courts of the country. They have the force of law and are binding on all lower Courts, and indeed the High Courts. As a Court of Record, the Supreme Court can even send a person to jail who may have committed contempt of the court.

As a Federal Court: Supreme Court is the Federal Court of India, India being a federation; powers are divided between the Union and State governments. The Supreme Court of India is the final authority to see to it that the division of powers as specified in the constitution is obeyed by both the Union and the State governments. So, Article 131 of the Indian Constitution vests the Supreme Court with original and exclusive jurisdiction to determine the justiciable disputes between the Union and the States or between the States.

Interpreter of the Constitution and Law: The responsibility of interpreting the constitution rests on the Supreme Court. The interpretation of the constitution which the Supreme Court shall make must be accepted by all. It interprets the constitution and preserves it. Where a case involves a substantial question of law as to the interpretation of the constitution either certified by the High Court or being satisfied by the Supreme Court itself, an appeal shall lie to the Supreme Court for interpretation of the question of law raised.

As a Court of Appeal: The Supreme Court is the highest court of appeal from all courts in the territory of India. Appeal lies to the Supreme Court of the cases involving interpretation of the constitution. Appeals in respect of civil and criminal cases also lie to the Supreme Court irrespective of any constitutional question.

Advisory Role: The Supreme Court has an advisory jurisdiction in offering its opinion an any question of law or fact of public importance as may be referred to it for consideration by the President.

Guardian of the Constitution: The Supreme Court of India is the guardian of the constitution. There are two points of significance of the Supreme Court’s rule as the protector and guardian of the constitution.

  • First, as the highest Federal Court, it is within the power and authority of the Supreme Court to settle any dispute regarding division of powers between the Union and the States.
  • Secondly, it is in the Supreme Court’s authority to safeguard the fundamental rights of the citizens.

In order to discharge these two functions it is sometimes necessary for the Supreme Court to examine or review the legality of the laws enacted by both the Union and the State Governments. This is known as the power of Judicial Review. Indian Supreme Court enjoys limited power of Judicial Review.

Writ Jurisdictions: Under Article 32 of the constitution of Supreme Court can issue Writs for the enforcement of fundamental rights. These writs are in the nature of Habeas Corpus, Mandamas, Prohibition, and Quo-warranto Certiorari.

Power of Judicial Review and Supreme Court: The power of the Judiciary to examine the validity of such law is called Judicial Review. The Supreme Court of India enjoys limited power of Judicial Review. Judicial Review empowers the courts to invalidate laws passed by the legislature. Supreme Court of India also enjoys the power of Judicial Review. If it occurs to the Supreme Court that any law enacted by Parliament or by a State Legislature curbs or threatens to curb the citizen’s fundamental rights, the Supreme Court may declare that law as unlawful or unconstitutional.

High Court: Organization, Powers and functions

The India High Courts Act 1861 was enacted to create High Courts for various provinces and abolished Supreme Courts at Calcutta, Madras and Bombay and also the Sadar Adalats in Presidency towns. These High Courts had the distinction of being the highest Courts for all cases till the creation of Federal Court of India, which was established under the Government of India Act 1935.

Art-214 of the constitution provides that, “There shall be a High Court for each state” Art-231 further provides that , “Parliament may by law establish a common High court for two or more states and a union territory.” At present for example there is a common High court for the states of punjab, Haryana and Union Territory of Chandigarh. Similarly. There is Common High court for Assam, Nagaland, Manipur, Meghalaya, Tripura and Mijoram.

A person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India and—

(a) has for at least ten years held a judicial office in the territory of India; or

(b) has for at least ten years been an advocate of a High Court or of two or more such Courts in succession;

A High Court judge may be removed before he or she attains the age of 62 years, only on the ground of incapacity or proved misbehaviour. He or she may be removed if both the Houses of Parliament adopt a resolution by a majority of their total membership and by two thirds majority of members present and voting, separately in each House in the same session. Such a resolution is submitted to the President, who then can remove the concerned judge.

The jurisdiction of the High court can basically be divided into-

(a) Original Jurisdiction and  (b) Appellate Jurisdiction

(a) Original Jurisdiction:The original jurisdiction of the High Courts is very limited.

(i) Cases related to Fundamental rights.(Can even issue writs for legal rights)

(ii) Constitutional jurisdiction.

(iii) Power of judicial review

(iv) The cases related to matters such as will, divorce, contempt of court.

(v) Election disputes.

(b) Appellate Jurisdiction:When a High Court hears an appeal against the decision of a lower court, it is called Appellate Jurisdiction.The High Court can hear appeals against the decisions of the lower Courts in the following cases:

(i) Civil cases

(ii) Appeals in revenue cases against the decision of the revenue board.

(iii) In cases related to succession,insolvency, patent, Design etc.

2. appeal in criminal cases-

(i) If the session judge has awarded imprisionment for seven year or more.

(ii) where the session judge has awarded capital punishment.

3. Constitutional Cases– if the high court certify that perticular cases is fit for appeal before itself and involves a substantial question of law.

Administrative powers

  1. It supervises and superintends the working of all the courts subordinate to it.
  2. It makes rules and regulations for the court subordinate to it and cun change such law.
  3. It can transfer any case from one court to another court
  4. It can investigate or enquire in to the record or anotherconnected documentsof any court subordinate to it.

Subordinate Judiciary

Articles 233 to 237 in Part VI of the Constitution make the following provisions to regulate the organization of subordinate courts and to ensure their independence from the executive . Articles 233 to 237 in Part VI of the Constitution make the following provisions to regulate the organization of subordinate courts and to ensure their independence from the executive .

The framework  of the  current  legal  system has been  laid  down by the  Indian  Constitution  , which states for an integrated and uniform judiciary system and  the judicial  system  derives  its  powers  from  it.  There  are  various  levels  of  judiciary  in  India— different  types  of  courts,  each  with  varying  powers  depending  on  the  tier  and  jurisdiction bestowed upon them. They form a hierarchy of importance, in line with the order of courts in which they sit, with the Supreme Court of India at the top, followed by High Courts of respective states with District Judges sitting in District Courts and Magistrates of Second Class and Civil Judge (Junior Division) at the bottom.

Type of cases

  • 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 as violation of law is not involved in civil cases.
  • Criminal cases relate to 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, againt the accused. In such cases the accused, if found guilty, is awarded punishment like fine, imprisonment or even death sentence.
  • Revenue cases relate to land revenue on agriculture land in the district.


The District Courts of India are presided over by a judge. They administer justice in India at a district level. These courts are under administrative and judicial control of the High Court of the State to which the district concerned belongs.

       The highest court in each district is that of the District and Sessions Judge. This is the principal court of civil jurisdiction. This is also a court of Sessions. Sessions-triable cases are tried by the Sessions Court. It has the power to impose any sentence including capital punishment.

       There are many other courts subordinate to the court of District and Sessions Judge. There is a three tier system of courts. On the civil side, at the lowest level is the court of Civil Judge (Junior Division). On criminal side the lowest court is that of the Judicial Magistrate. Civil Judge (Junior Division) decides civil cases of small pecuniary stake. Judicial Magistrates decide criminal cases which are punishable with imprisonment of up to five years.

       At the middle of the hierarchy there is the Court of Civil Judge (Senior Division) on the civil side and the Court of the Chief Judicial Magistrate on the Criminal side. Civil Judge (senior division) can decide civil cases of any valuation. There are many additional courts of Additional Civil Judge (senior division).The Jurisdiction of these addition courts is the same as that of the principal court of Civil Judge (Senior Division). The Chief Judicial Magistrate can try cases which are punishable with imprisonment for a term up to seven years. Usually there are many additional courts of Additional Chief Judicial Magistrates. At the top level there may be one or more courts of additional district and sessions judge with the same judicial power as that of the District and Sessions judge.


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