(Indian Polity) THE JUDICIARY - Qualifications and Appointment of Judges


Qualifications and Appointment of Judgeshttp://www.iasplanner.com/civilservices/images/indian-polity.png

The Judges of Subordinate Courts are appointed by the Governor in Consultation with the Chief Justice of the High Court of the concerned State. These Days, in most of the States, Judicial Service officers including the magistrates are selected through Competitive examinations held by the State Public Service Commission. They are finally, appointed by the Governor. Any person who has been an advocate for at least severe years of one who is in the Service of the State or the Central Government is eligible to be a judge of the District Court Provided he/she Possess the required legal Qualifications.

Civil Courts

The Court of the District Judge is the highest Civil Court in a district to deal with Civil Cases. Very often the Same Court is Called the Court of District and Sessions Judge when it deals with both Civil and Criminal Cases at the district level.

The judge of this Court is appointed by the governor of the State. Below the Court of District Judge, there may be one or more Courts of Sub Judge, have been established in districts to exclusively hear Cases Family disputes, like divorce, Custody of Children, etc. Below them there and Courts of Munsiffs and Small Causes Courts which decide cases involving petty amounts No appeal Can be made against the decisions of the Small Causes Courts. All these Courts hear and Settle Civil disputes.

The Court of the District Judge (Called the District Courts) hears not only appeals against the decisions of the Courts of Sub Judges, but also some of the Cases begin directly in the Court of District Judge itself, Appealing against the decisions of this Court may be heard by the High Court of the State. Civil Courts deal with Cases pertaining to disputes between two or more persons regarding property, divorce, Contract and Contract and breach of agreement or landlord-tenant disputes.

Criminal Courts

The Court of the Sessions Judge (Known as Sessions Courts) is the highest Court for Criminal Cases in a district. Below this Court, there are Courts of magistrates of First, Second and Third class. In metropolitan cities like Delhi, Calcutta, Mumbai and Chennai, First Class Magistrates are Called Metropolitan Magistrates. All these criminal courts are competent to try the accused and to award punishment, as sanctioned by law, to those who are found guilty of Violation of law.

Criminal courts hear criminal Cases which are related to violation of laws. These Cases involve theft, dacoity, rape, arson, pick-pocketing, physical assault, murder etc. In Such Cases the guilty person is awarded punishment. It may be fine, imprisonment or even death sentence. Normally every accused is presented by the police before a magistrate. The magistrate Can family dispose off Cases of minor Crime. But, when a magistrate finds prima-facie case of Serious Crime he/she may Commit the accused to the sessions Court. Thus, Sessions Courts try the accused who are sent to them by the magistrate Concerned. As mentioned above, an accused who is awarded death sentence by the sessions Court, Can be hanged to death only after his Sentence is Confirmed by the High Court.

The Constitutional Provisions which allow judicial review of legislations are Articles 13, 32, 131-136, 143, 226, 145, 246, 251, 254, and 372.

  • Article 372 (1) establishes the judicial review of the pre-Constitution legislation.
  • Article 13 declares that any law which contravenes any of the provisions of the part of Fundamental Rights Shall be Void.
  • Articles 32 and 226 entrusts the roles of the protector and guarantor of fundamental rights to the Supreme and High Courts.
  • Article 251 and 254 States that in Case of inconsistency between union and State laws, the State law Shall be void.
  • Article 245 states that the powers of both Parliament and State legislatures are subject to the provisions of the Constitutions.
  • Article 245 states that the powers of both Parliament and State legislatures are Subject to the provisions of the constitution.
  • Articles 131-136 entrusts the court with the power to adjudicate disputes between individuals, between individuals and the State, between the States and the Union; but the Court may be required to interpret the provisions of the Constitution and the interpretation given by the Supreme Court becomes the constitution and the interpretation given by the Supreme Court becomes the Law honoured by all Courts of the land.

Despite jack of express provision, Judicial review is one of the essential features of the Constitution. This has been established by Virtue of above constitutional provisions and the doctrine of ‘Basic’ Structure’ evolved by the Supreme Court in the Kesavananda Bharati Case (1973).

Procedure established by Law vs Due Process of Law

The Concept of Judicial Review in India is based on the ‘procedure established by law’ as against the ‘due process of law’ on which the American Version of Judicial Review is based. The Indian constitution Clearly lays down under Article 21 that no person Shall be deprived of his right to life and personal liberty except according to the procedure established by law. It means according to usage and practice as laid down in the statute or law.

It means according to usage and practice as laid down in the statute or law. Under the ‘procedure established by law. the court examines a law only from the point of view of the legislature’s Competence and sees that the prescribed procedures have been followed by the executive. In other words, the Court examines only the procedural aspect. The Court is not expected to go behind the motive of the law or to see its reasonableness and Cannot pronounce it unconstitutional unless the law is passed without the authority’s Competence.

Therefore, the court relies more on the good sense of the legislatures. On the other hand, the expression ‘due process of law’ implies that the Court can examine the law, not only from the point of view of Legislature’s Competence but also the aspect of intention or motive behind the law. In other words, the Court examines the law from the angle of Substantive and procedural grounds of being unreasonable as well. Though the Constitution of India provides for the procedure established by law, the Supreme Court in Maneka Gandhi Case, in 1978, interpreted Article 21 to include the expression ‘due process of law’ in it. Therefore, now Article 21 protects an individual both against the legislative and executive actions. However, it does not mean, in any way, that due process has come in vogue under judicial review in India.


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