Chapter 6: Civics: The High Courts and Subordinate Courts
In March 1982, in the town of Junagadh in Gujarat, a very ordinary hall was turned into a courtroom of a new kind. The people who came that day were not strangers to the courts. Their disputes were already listed somewhere — a claim over a small piece of land, money owed and not repaid, a quarrel between neighbours that had hardened into a case. Some of them had been waiting for years. What was tried out at Junagadh was a simple change of method. Instead of two lawyers arguing until a judge decided who had won, the two sides sat down with judges and social workers who acted as conciliators, and were helped to reach a settlement they could both accept. Nobody was declared the loser. Nobody paid a court fee. It sounds like an experiment in patience rather than in law, and at first that is all it was. But the idea spread across the country, and in 1987 Parliament passed the Legal Services Authorities Act. The Act gave these gatherings a legal standing: a settlement reached in one would be treated as a decree of a civil court, binding on both parties. A hall in Junagadh had raised a question that runs through this whole chapter. Justice in India is delivered by a ladder of courts — and the interesting question is always why each rung was built the way it was.
Diagram
Fig. 6.0-1 Caption: Every case in India begins somewhere on this ladder, and most of them never leave the bottom rung. Brief: A simple three-tier ladder or pyramid. Top rung labelled ‘Supreme Court — one, for the whole country’. Middle rung labelled ‘High Courts — one for each State, or one shared between States and Union Territories’. Bottom rung labelled ‘Subordinate Courts — District and lower courts, in every district’. A single arrow running upward along the side labelled ‘appeal’. Set to one side, not on the ladder, a small box labelled ‘Lok Adalat — settlement by agreement’, joined to the bottom rung by a dotted line. Do not label any court with the name of a State.
6.1 The Place Of The High Court In The Judicial System
India is a federal country. Powers are divided between the Union Government and the governments of the States, and each makes laws in its own field.
A country built that way has a choice to make about its courts. It can build one set of courts for Union law and a separate set for State law, or it can build a single ladder of courts that applies both. India chose the second.
6.1.1 One Judiciary, Three Levels
India has an integrated judiciary — a single system of courts, arranged in levels, applying both Union laws and State laws. There is no separate set of Union courts running alongside a separate set of State courts.
The system has three broad levels. The Supreme Court stands at the top for the whole country. Below it stands a High Court, which heads the judicial system of a State. Below the High Court stand the subordinate courts, working in every district.
Cases travel upward through these levels by appeal, and the law declared at a higher level binds the courts below it. So the ladder is not merely a matter of seniority. It is the mechanism that keeps the law the same across a very large country.
Why Not Two Sets Of Courts
The alternative was a real one, and some federal countries live with it. In the United States of America, federal courts and state courts run side by side, each with its own hierarchy, and a person may have to work out which set of courts their dispute belongs to.
The framers of our Constitution were building for a country with single citizenship, where a citizen of one State is a citizen of India and nothing else. Two parallel judicial systems would have cut against that.
A single hierarchy also keeps interpretation uniform. If a provision of a Union law can mean one thing in one State’s courts and another thing elsewhere, the law itself becomes uncertain.
The cost of the choice is worth naming. A single system carries an enormous volume of work, and every level of it depends on the level above for the final word — which is one reason cases can take years to end.
6.1.2 A High Court For Each State
The Constitution provides that there shall be a High Court for each State. Parliament, however, may set up a common High Court for two or more States, or for a State and a Union Territory.
There are at present 25 High Courts in India, which is fewer than the number of States and Union Territories. That gap exists because several of them are shared.
Whether a territory gets a High Court of its own depends on practical things: its area, its population, and the sheer amount of judicial work it generates. A small territory rarely generates enough work to justify a separate court with its own Chief Justice, judges, registry and building.
Among the Union Territories, Delhi has a High Court of its own. The others are placed under a High Court shared with a State, or with another Union Territory.
6.1.3 The Territorial Reach Of A High Court
Jurisdiction is the range of matters, and the area, over which a court has authority to hear and decide. A High Court’s territorial jurisdiction runs to the limits of the State it serves.
Where a High Court is shared, its jurisdiction covers every State and Union Territory placed under it. Table 6.1 sets out a few of these shared arrangements.
Read the second row carefully. Four States in the north-east share one High Court, and a case from any of them ends up before the same set of judges.
The table shows the arrangement and not the reasons for it. It cannot tell you why these particular groupings were made, and it is a picture of the present moment only — Parliament has created new High Courts before and may do so again.
Distance is a real problem, and the Constitution allows a solution. A High Court has a principal seat, and benches may also be established elsewhere in its territory. A bench is a sitting of some of the court’s judges at a place away from its principal seat.
The Rajasthan High Court, for example, has its principal seat at Jodhpur and a bench at Jaipur. The Madhya Pradesh High Court sits at Jabalpur, with benches at Gwalior and Indore.
A bench does not create a second High Court. It is the same court, hearing cases from one part of its territory at a place nearer to the people who live there.
6.2 Composition, Qualifications And Appointment
A court is not a building. It is a set of people given authority to decide, and the rules about who those people are, how they are chosen, and how securely they hold their posts are the rules that decide what kind of court it will be.
6.2.1 Composition Of A High Court
Every High Court consists of a Chief Justice and such other judges as the President of India may appoint from time to time.
The Constitution does not fix the number of judges in a High Court. That was a deliberate choice, because the work of different High Courts differs enormously — a court serving a large and populous State may need many times the strength of a small one.
So the sanctioned strength of each High Court is fixed separately and can be revised as the workload changes. A court whose pending cases have grown can be given more judges without amending the Constitution.
6.2.2 Additional Judges And Acting Judges
Two kinds of temporary appointment help a High Court cope with pressure, and both are made by the President.
An additional judge is appointed for a temporary period not exceeding two years, to clear the arrears of work piled up in a High Court. The post exists to deal with a backlog, not to enlarge the court permanently.
An acting judge is appointed when a permanent judge, other than the Chief Justice, is temporarily absent, is unable to perform the duties of the office, or is appointed to act as Chief Justice. An acting judge holds office until the permanent judge returns.
Neither an additional nor an acting judge may hold office after attaining the age of 62 years. The temporary character of the post does not relax the retiring age.
6.2.3 Qualifications For Appointment As A Judge
A person is qualified for appointment as a judge of a High Court if that person: (a) is a citizen of India; and (b) has held a judicial office in the territory of India for at least ten years; or (c) has been an advocate of a High Court, or of two or more such courts in succession, for at least ten years.
Since a judge of a High Court retires at 62, a person appointed to the office must be below that age. The Constitution fixes no minimum age at all.
Notice what the list contains and what it does not. It asks for a long apprenticeship in the working of the law — ten years of it — but it prescribes no examination, no degree beyond what practice requires, and no fixed number of cases won.
There is one qualification that was added and then taken away. The 42nd Amendment Act, 1976 made a distinguished jurist eligible for appointment as a judge of a High Court, and the 44th Amendment Act, 1978 removed it. A scholar of law who has never practised or judged is therefore not eligible today.
6.2.4 Appointment Of Judges
The Chief Justice of a High Court is appointed by the President in consultation with the Chief Justice of India and the Governor of the State concerned.
Every other judge of a High Court is appointed by the President in consultation with the Chief Justice of India, the Governor of the State, and the Chief Justice of that High Court.
Two things are worth noticing in that arrangement. The formal power of appointment rests with the Union executive, but the senior judiciary must be consulted in every case — so neither the government of the day nor the judges alone fill the court.
A judge of a High Court takes the oath of office before the Governor of the State, or before some person appointed by the Governor for that purpose.
6.2.5 Tenure, Removal And The Safeguards Of Independence
A judge of a High Court holds office until attaining the age of 62 years. A judge may resign earlier by writing under his or her hand addressed to the President.
Removal before that age is possible, but only on two grounds — proved misbehaviour or incapacity — and only by an elaborate procedure. The procedure is commonly called impeachment, though the Constitution speaks of removal by the President upon an address of both Houses of Parliament.
Each House must pass the address by a majority of the total membership of that House, and by a majority of not less than two-thirds of the members present and voting. Both Houses must do this in the same session before the address goes to the President.
That double requirement is severe, and it is meant to be. The procedure has been set in motion more than once in India, but no judge of a High Court has actually been removed by it. Flowchart FC 6.1 sets out the steps and the points at which the process can stop.
Flowchart
FC 6.1 — How A Judge Of A High Court Is Removed Caption: The procedure for removing a judge of a High Court, which is the same as that for a judge of the Supreme Court. Nodes: A motion for removal is moved in either House of Parliament, on the ground of proved misbehaviour or incapacity → the charge is inquired into as the law provides → if the charge is not found proved, the motion is dropped and the judge continues in office → if it is found proved, the address is put to each House → each House must pass it by a majority of its total membership and by at least two-thirds of the members present and voting → if either House fails to pass it, the process ends and the judge continues in office → if both Houses pass it in the same session, the address is presented to the President → the President passes an order removing the judge
Conditions That Protect A Judge
Security of tenure is only the first of the protections. Several others work together, and each of them removes one way in which a judge could be pressed.
The salaries and allowances of the judges are determined by Parliament, and they are charged on the Consolidated Fund of the State — the single account into which a government’s revenues flow and out of which its spending is made. A charged expenditure is not put to the vote of the legislature.
The salaries and allowances of a judge cannot be varied to that judge’s disadvantage after appointment, except during a Financial Emergency. A judge who rules against the government therefore has no reason to fear a cut in pay.
The conduct of a judge in the discharge of duties may not be discussed in the State Legislature, and a High Court may punish for contempt of itself. A judge may also be transferred from one High Court to another by the President, but only after consultation with the Chief Justice of India.
A judge who has been a permanent judge of a High Court may not practise law afterwards in that same court, or in any court below it. Such a judge may appear only in the Supreme Court and in other High Courts.
6.3 Jurisdiction And Functions Of The High Court
A High Court does several quite different jobs, and it is easy to blur them together. Sometimes it is the first court to hear a dispute. Sometimes it is checking the work of a court below. Sometimes it is testing a law made by an elected legislature.
The Constitution separates these jobs, and each carries its own name and its own limits. The five that follow are the ones a student of this subject must be able to tell apart.
6.3.1 Original Jurisdiction
Original jurisdiction is the power of a court to hear and decide a case at the first instance — that is, before any other court has dealt with it.
A High Court exercises original jurisdiction in matters of these kinds: (a) disputes relating to the revenue of the State and its collection; (b) cases concerning wills, divorce, marriage, company law and contempt of court, which may be brought before the High Court directly; (c) the interpretation of the Constitution; (d) the enforcement of Fundamental Rights, for which a High Court may issue writs; (e) election petitions challenging the election of a Member of Parliament, a member of the State Legislative Assembly, or a member of a local body.
Look at that list as a set of choices rather than as a list to be learnt. Each item is there because somebody decided that this kind of dispute should not begin at the bottom of the ladder.
An election petition is the clearest example. If the validity of an election could be fought out first in a small local court and then appealed upward for years, the term of the elected member might expire before the question was settled.
The power to issue writs works the same way. A person whose Fundamental Right is being violated needs relief quickly, and sending them to the foot of the judicial ladder would defeat the right itself. The writs are taken up in section 6.4.
6.3.2 Appellate Jurisdiction
Appellate jurisdiction is the power of a higher court to hear an appeal against the decision of a court below it, and to confirm, reverse or vary that decision.
This is the largest part of a High Court’s work. It applies to civil and to criminal matters, and it exists because judges, like everyone else, can be wrong.
An appeal is not a fresh trial of the whole dispute. It is an examination of a decision already given, by a court with the authority to correct it. Flowchart FC 6.2 traces the path.
Flowchart
FC 6.2 — How A Case Reaches The High Court On Appeal Caption: The route an appeal follows from a subordinate court up to the High Court, in civil and in criminal matters. Nodes: A subordinate court decides the case → the party who has lost may file an appeal within the time allowed by law → if the appeal from that court lies to the District Court, it is heard there first → an appeal against the decree or order of the District Court or an Additional District Court lies to the High Court → the High Court may confirm the decision, reverse it, vary it, or order a fresh hearing → if no appeal is filed, the decision of the court below stands → but where a Sessions Court has passed a sentence of death, the case goes to the High Court for confirmation whether or not anyone appeals
The last branch is worth pausing on. In every other situation the ladder moves only when someone chooses to climb it, and a decision nobody challenges simply stands.
A death sentence is the exception the law makes for itself. It cannot be carried out until a High Court has confirmed it, because that punishment cannot afterwards be corrected.
6.3.2.1 Appeals In Civil Cases
Civil cases concern disputes about rights and obligations between persons — over land, property, money, contracts, marriage, guardianship or a will.
Appeals against the decisions of District Courts in such matters lie to the High Court. Two situations are commonly listed: matters concerning land revenue, and cases in which a tribunal has committed a plain injustice, where the High Court may quash the tribunal’s order.
A tribunal is a body set up to decide disputes in one specialised field, such as tax or service matters, outside the ordinary courts. The High Court’s power over such bodies keeps them inside the legal system rather than beside it.
6.3.2.2 Appeals In Criminal Cases
Criminal cases are those in which the State prosecutes a person for an offence, such as theft, assault, robbery or murder.
In criminal matters the appellate jurisdiction of a High Court covers appeals of these kinds: (a) against the judgement of a Sessions Judge or an Additional Sessions Judge, where the sentence of imprisonment exceeds seven years; (b) against the judgement of an Assistant Sessions Judge, a Chief Metropolitan Magistrate or other Judicial Magistrate, where the sentence of imprisonment exceeds four years; (c) against an order of acquittal passed by a Sessions Judge, where the appeal is filed by the State; (d) confirmation of a sentence of death, which must be obtained before the sentence can be carried out.
The pattern behind the numbers is that the graver the sentence, the more certainly a second court will look at it. A short sentence is dealt with lower down; a long one reaches the High Court.
Notice also who may appeal against an acquittal. The person acquitted has no reason to; the State does — which is why the law names the State as the party in that case.
6.3.3 Revisory Jurisdiction
Revisory jurisdiction is the power of a High Court to call for the record of a case decided by a subordinate court and to satisfy itself that the decision was properly made.
It is used where the High Court considers that the court below has exercised a jurisdiction not vested in it, or has failed to follow proper procedure. Having called for the record, the High Court may review the case and take appropriate action on it.
Revisory jurisdiction is applied in situations such as these: (a) injustice, or an error of law apparent on the face of the record; (b) violation of the principles of natural justice, which require that both sides be heard and that no one judge their own cause; (c) an arbitrary use of authority leading to a wrong judgement; (d) a flagrant error in procedure.
This power looks like an appeal and is not one. The difference matters, and it is set out in Table 6.2.
An appeal belongs to the party who lost, who must file it. A revision belongs to the High Court, which may call for the record itself because a supervisory power is being exercised over the courts below.
6.3.4 Judicial Review
Judicial review is the power of a court to examine a law or an executive act and to declare it void if it conflicts with the Constitution.
A High Court has this power alongside the Supreme Court. If a law, an ordinance or an executive order made by the State Legislature or any other authority infringes the Fundamental Rights, or contravenes any provision of the Constitution, the High Court may declare it null and void.
A High Court may also withdraw a case involving a constitutional question from a subordinate court, decide it itself, or send it back with directions.
The power has not been left untouched by politics. The 42nd Amendment Act, 1976 restricted the authority of the High Courts to decide questions of constitutional validity, and the 43rd Amendment Act, 1977 removed those restrictions and returned the power to them.
That episode is the strongest argument for and against this power at the same time. A power that can strike down the work of an elected legislature is a serious one — and a power that a legislature can trim by amendment is not, by itself, a complete protection.
6.3.5 The High Court As A Court Of Record
A court of record is a court whose judgements are preserved as records that may be cited in later cases, and which has the power to punish for contempt of itself.
Two things follow from that status, and they are quite separate.
The first concerns the past. The judgements and orders of a High Court are preserved and may be produced in later cases as a precedent — an earlier decision that later courts follow when the same question arises again.
The law laid down by a High Court binds all the subordinate courts within its own territory. It does not bind another High Court, though such a decision carries weight and may be cited in support of an argument.
The second concerns authority in the present. A High Court may punish for contempt of court — conduct that disobeys its orders or lowers its authority. A court whose orders could be ignored without consequence would not be a court at all.
6.4 Enforcement Of Fundamental Rights And The Writs
6.4.1 Why A Court Is Given The Power To Issue Writs
The Fundamental Rights are the guarantees the Constitution gives every person against the misuse of power — the freedoms, the equality before law, the protection against arbitrary arrest.
A guarantee written on paper is worth exactly as much as the remedy behind it. If a person’s right is being violated and no court can be asked to stop it, the right has become a statement of good intentions.
The Constitution therefore attaches a remedy to the rights. A High Court may issue writs — orders from a judicial authority requiring a person or an authority to do a particular act, or to refrain from doing one.
The power is wide in an important way. A High Court may issue these orders both for the enforcement of the Fundamental Rights and for any other purpose, which means an ordinary legal right can be protected in the same way.
A High Court’s writ power runs to authorities within its own territory, and to matters where the cause of the complaint arises within that territory. It is a wide power exercised over a defined area.
6.4.2 The Five Writs
There are five writs, and each answers a different kind of complaint. Their names come from Latin, because the remedies were developed long before they were written into our Constitution.
Habeas corpus means ‘you may have the body’. The court orders whoever is holding a person in custody to produce that person before it and to justify the detention; if the detention has no legal basis, the person is set free. It may be issued against a public authority, and also against a private person who is confining another.
Mandamus means ‘we command’. It orders a public official, a public body, a corporation or a lower court to perform a public duty which it has failed to perform. It cannot be issued against a private individual, nor against the President or a Governor in respect of their official duties.
Prohibition orders a lower court or a tribunal to stop proceedings in a case that lies outside its jurisdiction. It is preventive, and is issued while the case is still going on.
Certiorari means ‘to be certified’. It is issued to a lower court or tribunal after a decision has been given, to quash an order made without jurisdiction or in plain error of law, or to have the case transferred to the higher court.
Quo warranto means ‘by what authority’. It asks a person holding a public office to show the authority under which the office is held, and restrains that person from acting in it if the claim cannot be made out.
Two of these are easily confused, and the difference is one of timing. Prohibition stops a case that is still being heard; certiorari undoes what has already been decided.
Figure 6.4-1 sets the five out against the complaint each of them answers.
Diagram
Fig. 6.4-1 Caption: Each writ answers a different complaint, and the wrong writ will not cure the right grievance. Brief: A two-column matching chart, five rows. Left column headed ‘The complaint’, right column headed ‘The writ’. Rows, in this order: ‘A person is being held in custody without lawful authority’ — ‘Habeas corpus’; ‘A public authority is refusing to perform a duty the law imposes on it’ — ‘Mandamus’; ‘A tribunal is hearing a case that is outside its jurisdiction’ — ‘Prohibition’; ‘An order has already been passed without jurisdiction or in error of law’ — ‘Certiorari’; ‘A person is occupying a public office without being entitled to it’ — ‘Quo warranto’. Join each pair with a single arrow. Set the Latin names in italics. Do not add pictures of courtrooms or judges.
Read the chart as a set of doors rather than as a list. A person approaching a High Court must ask which door fits the grievance, because a writ is a specific remedy and not a general complaint form.
The chart also hides something. It shows which writ is asked for, and says nothing about whether the court will grant it — that depends on the facts proved, and on whether some other remedy was available first.
6.4.3 How The High Court’s Writ Power Differs From The Supreme Court’s
Both courts issue writs, and the five are the same in each. The difference lies in scope and in reach.
The Supreme Court’s writ power is available for the enforcement of Fundamental Rights. A High Court’s writ power extends to Fundamental Rights and to any other purpose besides, so it may be used to enforce an ordinary legal right as well.
The reach is the other way round. The Supreme Court’s orders run throughout the territory of India, while a High Court’s writ jurisdiction is confined to its own territory.
There is one further difference of standing. The right to move the Supreme Court for the enforcement of Fundamental Rights is itself a Fundamental Right. The remedy before a High Court is a constitutional guarantee, but it is not part of the chapter on rights.
The practical consequence is easy to miss. For most people, the High Court is the nearer court, the cheaper court and the wider door — which is why the great bulk of writ petitions in India are filed there and not in Delhi.
6.5 The Subordinate Courts
Almost no case in India begins in a High Court. It begins in a district, in a building most people pass without noticing, before a judge whose name never appears in the newspapers.
6.5.1 Where The Subordinate Courts Sit In The System
The subordinate courts are the courts that function at the district level and below. Every court in India other than the Supreme Court and the High Courts belongs to this class.
Their organisation is broadly uniform across the country. For the purpose of judicial administration each State is divided into districts, and each district is placed under the jurisdiction of a District Judge.
Within a district there are civil courts, which decide disputes between persons, and criminal courts, which try offences. Both sets are arranged in grades, so that smaller matters are decided lower down and heavier matters higher up. Figure 6.5-1 shows the arrangement.
Diagram
Fig. 6.5-1 Caption: The courts of a district are arranged in two ladders, one for civil disputes and one for criminal trials. Brief: Two parallel vertical ladders under a single heading ‘The courts of a district’. Left ladder headed ‘Civil’, with these rungs from top to bottom: ‘Court of the District Judge’, ‘Court of the Civil Judge’, ‘Munsif’s Court or Court of the Sub-Judge’, ‘Court of Small Causes’. Right ladder headed ‘Criminal’, with these rungs from top to bottom: ‘Sessions Court’, ‘Chief Judicial Magistrate’, ‘Judicial Magistrate of the First Class’, ‘Judicial Magistrate of the Second Class’. A single upward arrow beside each ladder labelled ‘appeal’. Above both ladders one box labelled ‘High Court’, joined to the top rung of each ladder by an upward arrow. No photographs, no seals, and no names of any State.
Notice that the two ladders meet only at the top. A civil dispute and a criminal trial travel through different courts inside the district, and both end before the same High Court.
The judges of these courts are appointed by the Governor of the State. A District Judge is appointed in consultation with the High Court, and must be an advocate of at least seven years’ standing or an officer already in the judicial service.
Other judges of the subordinate courts are recruited through competitive examinations held by the State Public Service Commission, and the High Court is consulted in their appointment. The High Court also exercises administrative control over the subordinate judiciary — over postings, promotions and transfers within the judicial service.
That last point is easy to skim past, and it decides a great deal. A judge whose career was controlled by the district administration would find it hard to decide a case against that administration.
6.5.2 The Court Of The District Judge
The Court of the District Judge is the highest civil court in the district. It hears cases at the first instance, and it also hears appeals from the civil courts below it.
Its work covers disputes over land and property, money transactions, arbitration, guardianship, marriage and divorce, and cases involving a will. These are the ordinary quarrels of ordinary life, and they make up the bulk of civil litigation.
Appeals against the decisions of this court lie to the High Court of the State. In some districts Additional District Judges are appointed to share the load, and they are appointed in the same manner as the District Judge.
The District Judge also exercises administrative control over the civil courts of the district. The post therefore carries responsibility for how those courts are run, and not only for the cases the judge personally decides.
6.5.3 The Sessions Court
The Sessions Court is the highest criminal court in the district. It tries the graver offences — robbery, dacoity and murder among them.
Here is the point that confuses most readers. The Sessions Court is usually presided over by the same officer who presides over the Court of the District Judge, who is then known as the District and Sessions Judge.
The two names describe two capacities of one office. When the judge decides civil cases he or she sits as the District Judge; when the judge tries criminal cases he or she sits as the Sessions Judge.
Only a Sessions Judge or an Additional Sessions Judge may award a sentence of death or of imprisonment for life. A sentence of death, as section 6.3 explained, cannot be carried out until the High Court has confirmed it.
The Sessions Judge also hears appeals against the judgements of the magistrates below, and appeals against the judgements of the Sessions Court itself go to the High Court.
6.5.4 The Two Courts Distinguished
The distinction between these two courts is one of function, not of persons or of buildings. One stands at the top of the district’s civil ladder; the other stands at the top of its criminal ladder.
The consequences of that difference run through everything else — what kinds of case each hears, what each may order at the end, and what administrative work goes with the post. Table 6.3 sets them side by side.
6.6 Lok Adalats
6.6.1 What A Lok Adalat Means
Lok Adalat means ‘people’s court’. It is a forum in which a dispute is settled by agreement between the two parties, instead of being fought out and decided by a judge.
A dispute may be brought to a Lok Adalat at either of two stages. It may be a case already pending in a court of law, or it may be a matter at the pre-litigation stage, before any case has been filed.
The people who conduct the sitting are conciliators rather than judges. They explain to the parties what their rights and duties are, and help the two sides to arrive at a settlement that both can accept.
That is why a Lok Adalat is described as an alternative dispute redressal mechanism. It sits outside the ordinary contest of a trial, and it produces an agreement rather than a verdict.
The essential condition follows from this. Both parties to the dispute must agree to a settlement; if they do not, the Lok Adalat has nothing to record and the matter returns to the ordinary course.
Lok Adalats were given legal standing by the Legal Services Authorities Act, 1987, and are organised by the legal services authorities set up under that Act.
The decision recorded by a Lok Adalat is called an award. Because the award is deemed to be a decree of a civil court, it can be enforced in the same way as a decree obtained after a full trial.
Two consequences follow, and they pull in opposite directions. The dispute is finished, with no appeal to prolong it — and equally, a party who later regrets the bargain has no appeal to fall back on.
6.6.2 Advantages Of The Lok Adalat
The advantages of this forum are of four kinds, and each of them answers a familiar complaint about the ordinary courts.
It is quick. A matter can be taken up and settled in a single sitting, where a suit in the regular courts may run for years.
It is inexpensive. No court fee is payable when a matter is taken to a Lok Adalat, and where a pending case is settled there, the court fee already paid is refunded. A person may move it by a simple application, without the expense of a long-drawn contest.
It relieves the regular courts. Every matter settled here is a matter removed from a list of pending cases, which leaves the courts freer to deal with the serious ones.
It settles disputes by compromise. Family quarrels, disagreements between neighbours and minor cases of assault or injury are ended by agreement, so both sides leave with something and neither is branded the loser.
Taken together, these amount to an argument about access. Delay and cost fall hardest on the person who can least afford them, and a forum that removes both puts justice within reach of people who would otherwise have gone without it.
The honest limit is worth stating plainly. A Lok Adalat works only where both sides are willing to settle, so it cannot decide a contested question of law, and it cannot help a party who has a strong case and an unwilling opponent.
6.7 Summary
India has an integrated judiciary — a single ladder of courts applying both Union and State laws, with the Supreme Court at the top, a High Court at the head of each State’s system, and the subordinate courts below. The alternative, two parallel sets of courts as in the United States of America, was rejected because it would have cut against single citizenship and made the interpretation of law uneven.
The Constitution provides a High Court for each State, and allows Parliament to set up a common High Court for two or more States, or for a State and a Union Territory. There are at present 25 High Courts, since several territories share one; among the Union Territories, Delhi has a High Court of its own.
A High Court’s jurisdiction runs to the limits of the territory it serves, and benches may sit away from its principal seat so that litigants do not have to travel across a State to be heard.
Each High Court consists of a Chief Justice and such other judges as the President appoints; the Constitution fixes no number, so a court’s strength can be revised as its workload changes. Additional judges may be appointed for not more than two years to clear arrears, and acting judges when a permanent judge is absent.
To be appointed a judge, a person must be a citizen of India and must have either held judicial office in India for at least ten years or practised as an advocate of a High Court for at least ten years. A judge retires at 62. The distinguished jurist qualification, added by the 42nd Amendment Act, 1976, was removed by the 44th Amendment Act, 1978.
Judges are appointed by the President in consultation with the judiciary — the Chief Justice of India and the Governor for a Chief Justice, and the Chief Justice of that High Court as well for the other judges. Independence is then protected by a bundle of small rules working together:
- removal only for proved misbehaviour or incapacity, on an address of both Houses passed by a majority of the total membership and two-thirds of those present and voting;
- salaries charged on the Consolidated Fund of the State, and not variable to a judge’s disadvantage after appointment;
- a bar on discussion of a judge’s conduct in the State Legislature, and a bar on practising afterwards in the same court.
The High Court exercises five jurisdictions, and they do different jobs:
- original — hearing at first instance matters such as State revenue, wills, marriage, company law, contempt, the interpretation of the Constitution, the enforcement of Fundamental Rights, and election petitions;
- appellate — hearing appeals in civil and criminal cases from the courts below, with a death sentence requiring its confirmation even if nobody appeals;
- revisory — calling for the record of a case decided by a subordinate court to check that the court had authority and followed proper procedure;
- judicial review — declaring a law, ordinance or executive order void where it infringes the Fundamental Rights or contravenes the Constitution;
- court of record — preserving its judgements as precedents that bind the subordinate courts within its territory, and punishing for contempt of itself.
A High Court may issue the writs — habeas corpus, mandamus, prohibition, certiorari and quo warranto — each answering a different grievance. Its writ power is wider in scope than the Supreme Court’s, because it extends to Fundamental Rights and to any other purpose, but it is narrower in reach, being confined to its own territory.
Below the High Court are the subordinate courts of every district, arranged in civil, criminal and revenue streams. The Court of the District Judge is the highest civil court of the district and the Sessions Court the highest criminal court; in most districts one officer holds both jurisdictions, deciding civil suits as District Judge and trying grave offences as Sessions Judge. District Judges are appointed by the Governor in consultation with the High Court.
A Lok Adalat — a people’s court under the Legal Services Authorities Act, 1987 — settles a dispute by agreement between the parties rather than by a decision imposed on them. Its award is deemed a decree of a civil court and is final and binding, which makes it quick, free of court fee, and a relief to the crowded courts — but it works only where both sides are willing to settle.
The Idea In One Place
The chapter is about a ladder built for two purposes that pull against each other: justice must be near enough for an ordinary person to reach, and uniform enough to mean the same thing everywhere in India.
Each rung answers one of those needs. The subordinate courts and the Lok Adalat bring the system close to people; the High Court and the appeal that runs up to it keep the law consistent across a State.
The strongest question the chapter leaves open is what to do about time. Every safeguard the system adds — an appeal, a revision, a confirmation — makes a wrong decision easier to correct and makes every decision slower to arrive.
6.8 Key Terms
- Acting judge: a judge appointed to a High Court while a permanent judge, other than the Chief Justice, is absent or is acting as Chief Justice, and who holds office until that judge returns.
- Additional judge: a judge appointed to a High Court for a temporary period not exceeding two years, to clear the arrears of work in that court.
- Appellate jurisdiction: the power of a higher court to hear an appeal against the decision of a court below it, and to confirm, reverse or vary that decision.
- Award: the decision recorded by a Lok Adalat, which is deemed to be a decree of a civil court and is final and binding on the parties.
- Bench: a sitting of some of a High Court’s judges at a place away from its principal seat.
- Consolidated Fund: the single account into which a government’s revenues flow and out of which its spending is made.
- Contempt of court: conduct that disobeys a court’s orders or lowers its authority, which a court of record may punish.
- Court of record: a court whose judgements are preserved as records that may be cited in later cases, and which can punish for contempt of itself.
- Impeachment: the common name for the procedure by which a judge is removed by the President upon an address of both Houses of Parliament, on the ground of proved misbehaviour or incapacity.
- Integrated judiciary: a single system of courts, arranged in levels, applying both Union laws and State laws.
- Judicial review: the power of a court to examine a law or an executive act and to declare it void if it conflicts with the Constitution.
- Jurisdiction: the range of matters, and the area, over which a court has authority to hear and decide.
- Lok Adalat: a people’s court, in which a dispute is settled by agreement between the parties instead of being decided by a judge.
- Original jurisdiction: the power of a court to hear and decide a case at the first instance, before any other court has dealt with it.
- Precedent: an earlier decision of a court that later courts follow when the same question arises again.
- Revisory jurisdiction: the power of a High Court to call for the record of a case decided by a subordinate court and satisfy itself that the decision was properly made.
- Subordinate courts: the courts that function at the district level and below — that is, all courts other than the Supreme Court and the High Courts.
- Writ: an order from a judicial authority requiring a person or an authority to do a particular act, or to refrain from doing one.
6.9 Points to Ponder
A judge’s salary cannot be reduced and a judge is almost impossible to remove. Those rules exist so that a judge can decide without fear — but what, then, is left to hold a judge to a high standard of work?
The law laid down by one High Court binds the courts below it, but not another High Court. Is it acceptable that the same provision should mean one thing in one State and something different in another until the Supreme Court settles it?
A sentence of death must be confirmed by the High Court even if nobody appeals against it. What is the principle behind that rule, and are there other decisions that should be reviewed automatically for the same reason?
Every safeguard the system adds — an appeal, a revision, a confirmation — makes a wrong decision easier to correct and every decision slower to arrive. If you could remove one rung of the ladder to halve the waiting time, which would you remove, and what would be lost?
The Constitution requires the President to consult the judiciary before appointing a judge, but it does not say whose view prevails. If you were writing that provision today, who would you give the last word to, and what would go wrong under your answer?
An award of a Lok Adalat is final, and no appeal lies against it. For a person with little money and little time, is that finality a protection or a risk?
6.10 Objective Questions
Before appointing the Chief Justice of a High Court, the President consults [1 mark]
- the Chief Justice of India and the Governor of the State concerned
- the Chief Justice of India and the Chief Minister of the State concerned
- the Governor of the State and the Speaker of the State Legislative Assembly
- the Council of Ministers of the State concerned
The power of a High Court to call for the record of a case already decided by a subordinate court is known as its [1 mark]
- original jurisdiction
- appellate jurisdiction
- revisory jurisdiction
- writ jurisdiction
Fill in the blanks: The salaries and allowances of the judges of a High Court are charged on the ______ of the State, and cannot be varied to their ______ after appointment. [1 mark]
Assertion (A): A sentence of death passed by a Sessions Court cannot be carried out until the High Court has confirmed it. Reason (R): A punishment of that kind cannot be corrected once it has been carried out. Select the correct option: [1 mark]
- Both A and R are true, and R is the correct explanation of A.
- Both A and R are true, but R is not the correct explanation of A.
- A is true, but R is false.
- A is false, but R is true.
Match the writ in Column I with the grievance it answers in Column II. [1 mark]
| Column I | Column II |
|---|---|
| a. Habeas corpus | i. A person is occupying a public office without being entitled to it. |
| b. Mandamus | ii. A person is being held in custody without lawful authority. |
| c. Quo warranto | iii. An order has already been passed by a tribunal that had no jurisdiction to pass it. |
| d. Certiorari | iv. A public authority is refusing to perform a duty the law imposes on it. |
State whether the following statement is true or false: A High Court may issue writs only for the enforcement of the Fundamental Rights. [1 mark]
An additional judge may be appointed to a High Court for a temporary period not exceeding [1 mark]
- six months
- one year
- two years
- five years
Assertion (A): No appeal lies against the award of a Lok Adalat. Reason (R): A Lok Adalat decides the dispute after hearing arguments from both sides. Select the correct option: [1 mark]
- Both A and R are true, and R is the correct explanation of A.
- Both A and R are true, but R is not the correct explanation of A.
- A is true, but R is false.
- A is false, but R is true.
6.11 Check Your Concepts
What is meant by saying that the High Court is a court of record? [2 marks]
Apart from citizenship, state the qualifications prescribed for appointment as a judge of a High Court. [2 marks]
Differentiate between the appellate jurisdiction and the revisory jurisdiction of a High Court. [3 marks]
Why does the Constitution provide a High Court for each State instead of leaving all disputes to a single national court? Give reasons. [3 marks]
Explain what is meant by judicial review, and state what a High Court may do when a State law contravenes a provision of the Constitution. [4 marks]
Explain how the writ jurisdiction of a High Court differs from that of the Supreme Court, in scope and in territorial reach. [4 marks]
Distinguish between the Court of the District Judge and the Sessions Court, stating any five points of difference. [5 marks]
Describe the procedure by which a judge of a High Court may be removed from office, and explain how the conditions of service of the judges help to secure the independence of the High Courts. [6 marks]
6.12 Show Your Skills
- A municipal authority in a district is required by law to issue a licence once an applicant has completed certain formalities. An applicant completed them two years ago, and the authority has neither issued the licence nor given any reason for withholding it. The applicant now moves the High Court of the State.
- Name the writ the applicant should ask for, and state what such a writ directs. [2 marks]
- Under which jurisdiction of the High Court is such a petition taken up, and why does the applicant not begin at a court in the district? [2 marks]
- State one thing that the issue of this writ will not by itself decide. [1 mark]
- A photograph shows a hall arranged for a sitting. Two parties sit on either side of a long table, facing a panel of three persons — a retired judge, an advocate and a social worker. There is no witness box and no dock. A board on the wall carries the words ‘settlement by agreement’, and a queue of people waits outside with files in their hands.
- Identify the forum shown in the photograph and state what it means. [2 marks]
- State any two advantages of having a dispute settled in this way. [2 marks]
- Give one reason why a sharply contested question of law could not be settled in such a sitting. [2 marks]
- In a district, a Sessions Court convicts a person of a grave offence and sentences him to imprisonment for twelve years. The convicted person wishes to challenge the conviction. In another trial in the same district, the Sessions Judge passes an order of acquittal, and the State is dissatisfied with that outcome.
- Name the court to which the convicted person may appeal, and state why the appeal lies there. [2 marks]
- Can the State do anything about the acquittal? Before which court, and under what jurisdiction? [2 marks]
- If the Sessions Court had passed a sentence of death, what further step would the law require before the sentence could be carried out, and why? [2 marks]