In India we have the rule of law. Laws are applied equally to all persons and that a certain set of fixed procedures need to be followed when a law is violated. To enforce this rule of law, we have a judicial system that consists of the mechanism of courts that a citizen can approach when a law is violated. As an organ of the State, the judiciary plays a crucial role in the functioning of India’s democracy. It can play this role only because it is independent.
Courts take decisions on a very large number of issues. Broadly speaking, the work that the judiciary does can be divided into the following:
The control that the politician holds over the judge does not allow for the judge to take an independent decision. This lack of independence would force the judge to make all judgments in favour of the politician. Although we often hear of rich and powerful people in India trying to influence the judicial process, the Indian Constitution protects against this kind of situation by providing for the independence of the judiciary.
One aspect of this independence is the ‘separation of powers’. This is a key feature of the Constitution. What this means here is that other branches of the State-like the legislature and the executive – cannot interfere in the work of the judiciary. The courts are not under the government and do not act on their behalf.
For the above separation to work well, it is also crucial that all judges in the High Court as well as the Supreme Court are appointed with very little interference from these other branches of government. Once appointed to this office, it is also very difficult to remove a judge.
It is the independence of the judiciary that allows the courts to play a central role in ensuring that there is no misuse of power by the legislature and the executive. It also plays a crucial role in protecting the Fundamental Rights of citizens because anyone can approach the courts if they believe that their rights have been violated.
There are three different levels of courts in our country. There are several courts at the lower level while there is only one at the apex level. The courts that most people interact with are what are called subordinate or district courts. These are usually at the district or Tehsil level or in towns and they hear many kinds of cases. Each state is divided into districts that are presided over by a District Judge. Each state has a High Court which is the highest court of that state. At the top is the Supreme Court that is located in New Delhi and is presided over by the Chief Justice of India. The decisions made by the Supreme Court are binding on all other courts in India.
In addition to criminal law, the legal system also deals with civil law cases. Following table signifies the differences between criminal and civil law.
|Criminal Law||Civil Law|
|Deals with conduct or acts that the law defines as offences. For example; theft, harassing a woman to bring more dowry, murder.||Deals with any harm or injury to rights of individuals. For example; disputes relating to sale of land purchase of goods, rent matters, divorce cases.|
|It usually begins with the lodging of a First Information Report (FIR) with the police who investigate the crime after which a case if filed in the court.||A petition has to be filed before the relevant court by the affected party only. In a rent matter, either the landlord or tenant can file a case.|
|If found guilty, the accused can be sent to jail and also fined.||The court gives the specific relief asked for. For instance, in a case between a landlord and a tenant, the court can order the flat to be vacated and pending rent to be paid.|
In principle, all citizens of India can access the courts in this country. This implies that every citizen has a right to justice through the courts. The courts play a very significant role in protecting our Fundamental Rights. If any citizen believes that their rights are being violated, then they can approach the court for justice to be done. While the courts are available for all, in reality access to courts has always been difficult for a vast majority of the poor in India. Legal procedures involve a lot of money and paperwork as well as take up a lot of time. For a poor person who cannot read and whose family depends on a daily wage, the idea of going to court to get justice often seems remote.
For the common person, access to courts is access to justice. The courts exercise a crucial role in interpreting the Fundamental Rights of citizens.
However, there are also court judgments that people believe work against the best interests of the common person. For example, activists who work on issues concerning the right to shelter and housing for the poor believe that the recent judgments on evictions are a far cry from earlier judgments. While recent judgments tend to view the slum dweller as an encroacher in the city, earlier judgments (like the 1985 Olga Tellis vs. Bombay Municipal Corporation) had tried to protect the livelihoods of slum dwellers.
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