Judiciary & The Indian Constitution – Know How Well Has Judiciary Served The Constitutional Ideals
Supreme Court

Judiciary & The Indian Constitution – Know How Well Has Judiciary Served The Constitutional Ideals

The constitution shares an inextricable relationship with the judiciary. While the other two parts of the government system, legislature & executive promulgate & executive the laws respectively, it is the judiciary which ensures that the laws – whose crux is none other than fundamental rights –are not being violated and are happening correctly and appropriately.  Judiciary is the broad avenue where anyone from everyone can come to seek help for the violation of their fundamental rights, It is the recourse which anyone & anyone can avail and get their basic dues restored or even compensated. Without a proper, free and fair judiciary, the democratic polity risks digressing into the orders of chaos and despotism.

You may also read Tax Exemptions: Know About Incentives For Start-Ups

Well, the Indian judicial system is hierarchical, composite and well-integrated which the two divergent aspects of federalism & unitary characteristics, both of which are prevalent in the Indian politico-legal system. The apex court in the Indian Judicial System is the Supreme Court of India. It is effectively called the custodian of the Constitution. Justice should be easily accessible to the people, this forms the fundamental basis of an effective judiciary, which in turn forms the core purpose of a modern welfare state, which judiciously blends the two different of freedom (let live alone) and social responsibility (the temporary patronization of weaker sections until we achieve equality).  

Some special features of the Indian Judiciary:

1. Amongst the Prominent Judicial Systems in the World

The judicial system of India is amongst the most important judicial systems in the world. India’s judicial structure is utilized to understand and apply the laws of the land. Judiciary acts in the amicable settlement of disputes between the parties. The Doctrine of Separation of powers empowers the judiciary to interpret laws. Judiciary does not actually make laws but interprets and applies them in the country.

2. A Unified And Cohesive Judicial System

India has an integrated and unique judicial system which is broadly chartered in the Constitution. Supreme Court lies at the top of the integrated hierarchy. Below the Supreme Court, there are the High Courts at the provincial or state level. Below the High Court\, there is a very well-integrated hierarchy which is made up of district courts and lower courts. Also, there is a single structure that galvanises both the Central and the State laws. India is a federation of provinces & union territories with a strong centre. India’s legal system tries to address that equation amicably. As per the characteristics of an integrated judicial system, an individual can appeal to a higher court when he/she is not comfortable with the decision of the lower court.

3. An Autonomous Judiciary

The United States has the system of separation of powers to ensure the independence of the judiciary. But ours is a constitutional system that is set up on the basis of Parliamentary sovereignty. Herein, the separation of powers is ruled out. This is what happens in England. This is also happening partly in India as here the Parliamentary and constitutional sovereignty doctrines are blended together. The independence of the judiciary here implies the freedom of the judges to make judgements in an unbiased manner, free from any control and influence. An independent judiciary is needed to serve the following factors:

  • To check the functioning of the organs.
  • Interpreting the provisions of the constitution.
  • To act in a fair and unbiased manner.

4. Importance of Independence of the Judiciary

As per some observers, it is amazing that the independence of the judiciary is still not quite distinct even after so many years of its unfolding. Even our Constitution speaks about the independence of the judiciary without clearly spelling out what it means. The main talk is about the separation of powers that is establishing a system wherein judiciary is not under any undue influence of legislature (and extendedly the executive).  

5. The Emergence Of Judicial Activism

This term, Judicial Activism has its origin in the USA. This term had a positive connotation in the mid-20th century s courts were seen as upholder of the democratic rights of the people. The concept of judicial activism evolved and developed fast over the years and it came to attain a lot of legitimacy among the Indians with special reference to the unruly behaviour of the legislative and executive organs.

Various observers have praised lauded the efforts of judges in the protection of civil rights. Judicial activists came to be hailed as civil rights activists. However lately, some experts have derided judicial activism as an instance where the judge is misusing the authority as democracies meant to thrive on the separation of powers among the judiciary, executive and legislature. Lots of activism in the hands of the judiciary is at times seen as infringing on the rights of the other sections of the government.

In the gospel of promoting democratic ideals, there is a special requirement for people’s involvement in influencing government actions and programmes in the desire of good governance. The Indian Judiciary by pursuing judicial activism has facilitated the emergence of protection & promotion of social interests.

You may also read Pro Bono Legal Service - Know About Free Legal Services

The Hierarchy Of The Indian Judiciary Or The Indian Judicial System
Supreme Court

The Hierarchy Of The Indian Judiciary Or The Indian Judicial System

Judiciary – The Paramount Pillar Of A Vibrant Democracy

Most democratic governments across the world consist of three parts, namely Legislature, Executive, and Judiciary.  The same is true about our own country, the Republic of India. While the legislature and executive are concerned with the promulgation and implementation of law respectively, it is the judiciary that invokes the spirit of the Constitution and ensures that laws are being properly implemented and there is no gross or subtle lapse in the implementation of laws.

Judiciary sees to it that if someone is being denied his/her fundamental rights, then the perpetrators are brought to book and free flow of equality and freedom are restored. If perfect democracy is the most sublime dream of the idealistic human, then that dream is totally unattainable without the active involvement of a free and fair democracy.  

Also read Pro Bono Legal Service - Know About Free Legal Services

The Importance Of The Indian Judiciary

A formidable structure like the judiciary and that too of a vast country like India – which is all set to take over China in terms of population – should be well-built and well-structured, in order to serve such a huge mass of people. So, the Indian judiciary consists of a well-built hierarchical order, to serve the interests of the people and to create a harmonious equation between the center and the states as India is neither purely unitary nor purely federal in its statecraft structure.

The Hierarchy Of The Indian Judiciary  

The Indian Judicial system is in part the continuation of the British legal which was established around the mid-19th century by the English government.

The Indian Judicial system is an organized combination of various types of courts that exist and operate herein. Broadly speaking,  they are divided into 3 levels. Below is the chronological order of the Indian legal system means we begin with the topmost level court in the hierarchy and end with the lowest one:

You may also read What are the legal compliances required for a Start-up?

The Supreme Court

The Supreme Court occupies the highest level of the Indian court system. It is the highest authority court system with the maximum overriding influence in India, its decision can not be challenged by any other court in India. In case, somebody wants to challenge it, he/she will have to write a letter to the President or the Prime Minister of India to do so.

The Indian judiciary has a single Supreme Court, which is situated in the Indian national capital Delhi. The Supreme Court came was set up in the year 1950 on January 28,  just two days after the constitution of India came into existence.

State Courts / High Court

The State Courts are placed directly under the Supreme Court of India. Most Indian states have a court that has maximum judicial authority in the respective state. This is the High Court of the state which is usually located in the capital city of that particular state. The High Courts judge the cases of their state while the Supreme Court wields the authority to challenge the verdicts that happen in the High Courts.

District Court

Then there are the lower courts in all the states that are lesser in matters of power and authority than the High Court. They are called district courts because they have authority in that district. The district court is further divided into 3 parts as under –

Session Courts – They form part of District Court, they have highest power in the district.

Lower Courts – They are courts of the lower level and mostly, all the cases of close-by localities are sent to these courts.

Panchayat – They are sort of courts. But they are in villages where a jury consisting of five (or more) people of that village selects a head. They look after the local issues. If some issues are beyond their power, those are sent to Lower Court then.

Also read Tax Exemptions: Know About Incentives For Start-Ups

चाइल्ड कस्टडी की मामलों में बच्चे की इच्छा भी बहुत महत्वपूर्ण: सर्वोच्च न्यायलय
Child Custody

चाइल्ड कस्टडी की मामलों में बच्चे की इच्छा भी बहुत महत्वपूर्ण: सर्वोच्च न्यायलय

Case: Smriti Madan Kansagra v Perry Kansagra (Civil Appeal No. 3559/2020)

Section 17(3) of the Guardian & Wards Act 1890

17(3), the preferences and inclinations of the child are of vital importance for determining the issue of custody of the minor child. Section 17(5) further provides that the court shall not appoint or declare any person to be a guardian against his will".

Smriti Madan Kansagra v Perry Kansagra (Civil Appeal No. 3559/2020) केस जहाँ Guardian & Wards Act 1890  की धारा 17(3) को समक्ष रखते हुए माननीय सर्वोच्च न्यायालय ने ये माना की चाइल्ड कस्टडी की मामले में नाबालिग की इच्छा भी सामान रूप से महत्वपूर्ण है तथा उसकी वरीयताओं पर भी विचार किया जाना चाहिए खास कर जब वो एक ऐसे उम्र में हो जहां उसमे अपनी पसंद और नापसंद की बारे में पर्याप्त जानकारी हो तथा वो भी अपनी वरीयता की अनुसार चुनाव करने योग्य हो.

सुप्रीम कोर्ट की तीन जज की बेंच जिसमे न्यायमूर्ति यु यु ललित, न्यायमूर्ति इंदु मल्होत्रा तथा न्यायमूर्ति हेमंत गुप्ता थे उन्होंने एक अत्यंत महत्वपूर्ण फैसले में एक नाबालिग बालक की कस्टडी उसके पिता को प्रदान की जो की नैरोबी, केन्या  में रहते है।

यह क़ानूनी लड़ाई लगभग दस साल चली जिसमे आदित्य (वह नाबालिग बालक जिसकी कस्टडी की लिए ये केस था) की कस्टडी की लिए उसके माता पिता ने परिवार कोर्ट से ले कर सुप्रीम कोर्ट तक ये कठिन कनूनी राह तय की तथा अंततः सुप्रीम कोर्ट ने आदित्य की सम्पूर्ण कस्टडी उसके पिता को प्रदत्त की।

यह जानना भी बेहद रोचक है की इस लम्बी और कठिन क़ानूनी लड़ाई की दौरान माननीय न्यायमूर्ति आदित्य से व्यक्तिगत रूप से अपने चैम्बर में कई बार मिले और यह जानने की कोशिश करी की आदित्य की व्यक्तिगत राय क्या है तथा उसकी वरीयता में उसके माता या पिता में उसकी अधिक नज़दीकी किसके साथ है। इस प्रकार की अनौपचारिक बातचीत से माननीय न्यायमूर्ति संतुष्ट हुए की बालक की समझ और वरीयता में वो अपने पिता से ज्यादा करीब था तथा उसकी इच्छा अपने पिता के साथ रहने की थी।

माननीय सुप्रीम कोर्ट ने अपने फैसले में स्पष्ट तौर Guardian & Wards Act 1890 अधिनियम की धारा १७(३)  का उल्लेख किया तथा स्पष्ट किया की इस केस में बालक की भविष्य का फैसला इस प्रकार से होना चाहिए जो उसके भले के लिए सर्वोपरि हो तथा उसके सभी हितों की सम्पूर्ण रक्षा भी हो।

माननीय सुप्रीम को ने परिवार कोर्ट, हाई कोर्ट के फैसले तथा कौंसिलर की रिपोर्ट को भी बहुत गौर से परखा और पाया की बालक आदित्य ने अपने पिता की अधिक झुकाव दिखाया था। अपने फैसले को अंतिम रूप देते हुए माननीय सर्वोच्च न्यायालय ने बालक की हितों को सर्वोपरि मानते हुए उसकी संगरक्षण की ज़िम्मेदारी उसके पिता को सौंप दी। सुप्रीम कोर्ट का पूरा फैसला यहाँ से पढ़े।:

https://main.sci.gov.in/supremecourt/2020/8161/8161_2020_34_1501_24506_Judgement_28-Oct-2020.pdf

 

Daughters have the birthright in the ancestral Property: Supreme Court
Property

Daughters have the birthright in the ancestral Property: Supreme Court

With this Judgement now Daughter can have equal social status at par the son in the family and they are equal claimant in the paternal property.

Case:  CIVIL APPEAL NO.   DIARY NO.32601 OF 2018, VINEETA SHARMA  versus  RAKESH SHARMA & ORS.

Bench:             Hon’ble Justice Arun Mishra, S Abdul Nazeer & M R Shah

Key section:    Section 6 Hindu Succession Act 1956/ Hindu Succession (Amendment) Act, 2005,

Key Cases referred:    Prakash & Ors. v. Phulavati & Ors. (2016) 2 SCC 36 (2016), Lokmani &  Ors. v. Mahadevamma & Ors., [S.L.P.(C) No.6840 of 2016], Balchandra v. Smt. Poonam & Ors. [SLP [C] No.35994/2015], Sistia Sarada Devi v. Uppaluri Hari Narayana & Ors. [SLP [C] No.38542/2016]

Summery of the Judgement:     

Supreme Court held that daughters will have equal coparcenary rights in Hindu Undivided Family properties, irrespective of whether the father was alive or not on 9 September 2005, when an amendment came into force.

The bench decided that The provisions contained in substituted section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.”

Supreme Court also acknowledged the fact that due to the ambiguous legal interpretations & conflicting decision there are many cases pending before different high courts and lower courts & daughters should not be deprived of their rights of equality conferred upon them by section 6; directed that all such pending cases should be decided as far as possible within a time frame of six months.

Read the complete judgement from here:  https://main.sci.gov.in/supremecourt/2018/32601/32601_2018_33_1501_23387_Judgement_11-Aug-2020.pdf

Now  spouse (husband or wife) can claim maintenance from the date on which the application for maintenance was filed: Supreme Court
Family Dispute

Now spouse (husband or wife) can claim maintenance from the date on which the application for maintenance was filed: Supreme Court

Case No: CRIMINAL APPEAL NO. 730 of 2020 (arising out of SLP (Crl.) No.9503/2018)

Referred Acts in the Judgement:

  • The Code of Criminal Procedure (CrPC), 1973
  • The Protection of Women from Domestic Violence Act (DVA), 2005
  • Hindu Marriage Act (HMA), 1955
  • Special Marriage Act (SMA), 1954
  • Hindu Adoption and Maintenance Act (HAMA), 1956

 

Summary of the Case:

The Wife (Neha) filed an interim application u/s 125 CrPC claiming maintenance for herself and their son by her husband (Rajnesh). Family Court granted her a favourable Order of Rs.15,0000/- p.m. and Rs.5,000/-p.m. to their child to be paid by the Husband (Rajnesh). This Order was challenged by the Husband by way of a Criminal Writ Petition in Bombay High Court (Nagpur Bench) wherein the Court affirmed the Order of the Family Court and dismissed the Criminal Writ Petition. Husband lastly appealed to the Supreme Court. The Hon’ble Court awarded additional costs and relevant Order in maintenance of the Wife and their son by the Husband and also provided detailed guidelines on the fourth issue amongst the five (5) problems mentioned in the judgment that is issue of date from which maintenance to be awarded. 

In this Judgement Hon’ble Supreme Court observed and analysed all the precedents and regulatory frameworks used to decide a date from which maintenance can be awarded.

 

What should be the date from which Maintenance to be Awarded?

Hon’ble court observed that since there is no uniform regime and there are multiple practices adopted by the family courts across the country to decide the date from which the maintenance can be awarded. Hon’ble court also observed that there are three possibilities mostly adopted as the maintenance date:

a) Date on which the application for maintenance was filed;

b) Date of the order granting maintenance;

c) Date on which the summons was served upon the respondent.

 

Hon’ble court observed various precedent & judgements from different family courts and reached to the conclusion that family matters take a lot of time for their disposal and this delay is not in favour of justice and against the human rights & basic dignity of the individual.

 

Hon’ble court also provided the rationale for the above direction that it will enable the wife to survive  the financial tough time because if a dependent spouse loses its financial strength then it became very challenging to represent themselves before the court.  

 

To bring uniformity and consistency in the orders passed by all the Courts Hon’ble Supreme Court’s direction is very clear that the date on which  the maintenance application is filed will be considered as the date from which Maintenance can be awarded.  Hon’ble court also observed that the right to claim maintenance must date back to the date of filing the application, since the period during which the maintenance proceedings remained pending is not within the control of the applicant.  

 

Read the judgement here:                   https://main.sci.gov.in/supremecourt/2018/37875/37875_2018_39_1501_24602_Judgement_04-Nov-2020.pdf