Constitution
LAW, COURTS AND
THE CONSTITUTION
India’s
commitment to the rule of law is grounded in the Constitution which establishes
India as a ‘Sovereign Socialist Secular Democratic Republic’ with a
Parliamentary form of Government. The Constitution of India is the supreme
legal authority which binds the legislative, executive, and judicial organs of
government. The Constitution grants all citizens Fundamental Rights and
empowers the independent judiciary to invalidate legislations or government
actions which violate the Constitution. Some of the other key features of the
Constitution are a federal system of governance between the Union and the
States, separation of powers between the three organs of the Government, free
and fair elections, equality before the law, and a secular state that recognizes
freedom of conscience and religion.
SOURCES OF LAW
The
Constitution of India is the source of legal authority and empowers Parliament
and the Legislatures of States and Union Territories to enact statutes. There
is also a vast body of laws known as subordinate legislation in the form of
rules, regulations, and by-laws made by Central and State Governments and local
authorities like Municipal Corporations, Municipalities, Gram Panchayats and
other local bodies. This subordinate legislation is made under the authority
conferred or delegated either by Parliament or the concerned Legislature of the
State or Union Territory. The decisions of the Supreme Court are binding on all
Courts within the territory of India. As India is a land of diversities, local
customs and conventions which do not contradict a statute or the Constitution
are recognised and taken into account by Courts while administering justice in
certain spheres.
ENACTMENT OF LAWS
The
Seventh Schedule of the Constitution contains three lists: a Union List, a
State List, and a Concurrent List. These lists set out the various subjects on
which Parliament and State Legislatures are empowered to make laws. The Indian
Parliament is competent to make laws on matters enumerated in the Union List.
State Legislatures are competent to make laws on matters enumerated in the
State List. While both the Union and the States have the power to legislate on
matters enumerated in the Concurrent List, only Parliament has power to make
laws on matters not included in the State List or the Concurrent List. In the
event of repugnancy, laws made by Parliament shall prevail over laws made by
State Legislatures, to the extent of the repugnancy. The State law shall be
void unless it has received the assent of the President, and in such case,
shall prevail in that State.
APPLICABILITY OF
LAWS
Laws
made by Parliament may extend throughout or in any part of the territory of
India and those made by State Legislatures generally apply only within the
territory of the State concerned. Hence, variations are likely to exist from
State to State in provisions of law relating to matters falling in the State
and Concurrent Lists.
JUDICIARY
One
of the unique features of the Indian Constitution is that, notwithstanding the
adoption of a federal system and existence of Union and State Acts in their
respective spheres, it provides for a single integrated system of courts to
administer both Union and State laws. At the apex of the entire judicial system
is the Supreme Court of India followed by the High Courts in each State or
group of States. Under the administration of each High Court are the District
Courts. Village/Panchayat Courts also function in some States under various
names like Nyaya Panchayat, Gram Nyayalaya, Gram Kachheri to decide civil and
criminal disputes of petty and local nature. Each State is divided into
judicial districts presided over by a District and Sessions Judge, which is the
principal civil court of original jurisdiction and can try all offences
including those punishable with death. The District and Sessions Judge is the
highest judicial authority in a district. District Courts have courts of civil
jurisdiction, presided over by judges known in different States as Munsifs,
Sub-Judges, Civil Judges. Similarly, the classes of criminal courts include the
Chief Judicial Magistrates and Judicial Magistrates of First and Second Class.
CONSTITUTION OF
SUPREME COURT
The
Supreme Court of India comprises the Chief Justice of India and not more than
33 other Judges appointed by the President of India. Supreme Court Judges
retire at the age of 65. In order to be appointed as a Judge of the Supreme
Court, a person must be a citizen of India and must have been, for at least
five years, a Judge of a High Court or an Advocate of a High Court for at least
10 years or he must be, in the opinion of the President, a distinguished
jurist. The Constitution also contains provisions for a Judge of the High Court
who may be appointed as an ad-hoc Judge of the Supreme Court and for retired
Judges of the Supreme Court or High Courts to sit and act as Judges of that
Court. The independence of judiciary is part of the basic structure of the
Indian Constitution. A Supreme Court Judge cannot be removed from office except
by an order of the President passed after an address in each House of
Parliament supported by a majority of the total membership of that House and by
a majority of not less than two-thirds of members present and voting, and
presented to the President in the same Session for such removal on the ground
of proved misbehavior or incapacity. A person who has been a Judge of the
Supreme Court is debarred from practicing in any court of law or before any
other authority in India.
SUPREME COURT
REGISTRY
The
administrative wing of the Supreme Court is known as the Registry. For
systematic functioning and efficient disposal of work, the Registry is divided
into two main wings, viz. Administration and Judicial, which are further
divided into various Divisions, Branches, Sections and Cells. The
administrative power for determining the work structure of the Court and the
Registry exclusively vests in the Chief Justice of India. The Secretary General
who is of the rank of Secretary to the Government of India is the highest
Administrative Officer of the Supreme Court. He is assisted by
Registrars/Officers on Special Duty and Additional Registrars who are assigned
work of specific branches and they, in turn, are assisted by Deputy Registrars,
Assistant Registrars and other officers/staff.
ATTORNEY GENERAL
The
Attorney General of India is the highest law officer of the country appointed
by the President. He shall be a person qualified to be appointed as a Judge of
the Supreme Court. It is the duty of the Attorney General of India to give
advice to the Government of India upon such legal matters and to perform such
other duties of legal character as may be referred or assigned to him by the
President. In the performance of his duties, he has the right of audience in
all Courts in India as well as the right to take part in the proceedings of
Parliament without the right to vote. In discharge of his functions, the
Attorney General is assisted by a Solicitor General and Additional Solicitors
Generals.
SUPREME COURT
ADVOCATES
There are three categories of
Advocates who are entitled to practise law before the Supreme Court of India:-
SENIOR ADVOCATES
‘Senior
Advocate’ means any advocate so designated under sub-section (2) of Section 16
of the Advocates Act, 1961, and all such advocates whose names were borne on
the roll of the senior advocates of the Court immediately before the
commencement of Chapter III of the Advocates Act, 1961. All matters relating to
the designation of Senior Advocates in the Supreme Court of India are dealt
with by a Permanent Committee known as the “Committee for Designation of Senior
Advocates” under the Guidelines for Designation of Senior Advocates by the
Supreme Court of India, 2023.The Chief Justice of India or any Judge of the
Supreme Court may recommend the name of an advocate for being designated as a
senior advocate on being of the opinion that such an advocate who mainly
practises in the Supreme Court should be so designated by virtue of their
ability, standing at the Bar or special knowledge or experience in law. A
Senior Advocate is not entitled to appear in the Supreme Court without an
Advocate-on-Record. He is also not entitled to accept instructions to draw
pleadings or affidavits, advise on evidence or do any drafting work of an
analogous kind in any court or tribunal in India or undertake conveyancing work
of any kind whatsoever but this prohibition shall not extend to settling any
such matter as aforesaid in consultation with a junior.
ADVOCATES-ON-RECORD
Only
these Advocates are entitled to file any matter or document before the Supreme
Court. They can also file an appearance or act for a party in the Supreme
Court.
OTHER ADVOCATES
These
are the Advocates whose names are entered on the roll of any State Bar Council
maintained under the Advocates Act, 1961. They can appear and argue any matter
on behalf of a party in the Supreme Court but they are not entitled to file any
document or matter before the Court.
AMICUS CURIAE
If
a petition is received from the jail or in any other criminal matter where the
accused is unrepresented, then an Advocate is appointed as amicus curiae by the
Court to defend and argue the case of the accused. In civil matters, the Court
can appoint an Advocate as amicus curiae if it thinks it necessary in case of
an unrepresented party. Courts can also appoint amicus curiae in any matter of
general public importance or in which the interest of the public at large is
involved.
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