Comparison Of The Indian And British Judiciary

Project By: Ashish Anand Agrim Aggarwal Aditya Malviya Sahil Aggarwal



The Basic Points going to be discussed will be the similarities and differences between the Indian judiciary; which is the continuation of the British Legal system established by the English in the mid-19th century, and the English Judiciary itself.

The judiciary (also known as the judicial system or judicature) is the system of courts that Interprets and applies the laws in the name of the state.  The judiciary also provides a mechanism for the resolution of disputes. Under the set of guidelines for the separation of powers, the judiciary generally does not make law (that is, in a plenary fashion, which is the responsibility of the legislature) or enforce laws (which is the responsibility of the executive), but rather interprets the laws and applies them to the facts of each case.  This branch of government is often tasked with ensuring equal justice under law. 

It usually consists of a court of final appeal (called the "supreme court" or "constitutional court"), together with lower courts.  In many jurisdictions the judicial branch has the power to change laws through the process of judicial review.  Courts with judicial review power may annul the laws and rules of the state when it finds them incompatible with a higher norm, such as primary legislation, the provisions of the constitution or international law.  Judges constitute a critical force for interpretation and implementation of a constitution, thus de facto in common law countries creating the body of constitutional law. 

Indian Supreme Court

It is the continuation of the British Legal system established by the English in the mid-19th century based on a typical hybrid legal system in which customs, precedents and legislative law have validity of law.  Constitution of India is the supreme authority of the country. There are various levels of judiciary in India — different types of courts have different styles of judges. They also form a strict hierarchy of importance, in line with the order of the courts in which they sit, with Supreme Court of India at the top, followed by High Courts of respective states with district judges sitting in District Courts and Magistrates of Second Class and Civil Judge (Junior Division) at the bottom. 







It hears all prosecutions and civil disputes, including disputes between individuals and the government. Members of the Indian judiciary are independent of the executive and legislative branches of government. On the 28th of January, 1950, two days after India became a Sovereign Democratic Republic, the Supreme Court came into being. The inauguration took place in the Chamber of Princes in the Parliament building which also housed India's Parliament, consisting of the Council of States and the House of the People. It was here, in this Chamber of Princes, that the Federal Court of India had sat for 12 years between 1937 and 1950. This was to be the home of the Supreme Court for years that were to follow until the Supreme Court acquired its own present premises.

  

The Supreme Court of India comprises the Chief Justice and 28 other Judges appointed by the President of India. Supreme Court Judges retire upon attaining the age of 65 years. 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 of two or more such Courts in succession, or an Advocate of a High Court or of two or more such Courts in succession for at least 10 years or he must be, in the opinion of the President, a distinguished jurist.

The Constitution seeks to ensure the independence of Supreme Court Judges in various ways. A Judge of the Supreme Court 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. 

"English law" is a term of art. It refers to the legal system administered by the courts in England and Wales, which rule on both civil and criminal matters.  English law is renowned as being the mother of the common law and is based on those principles. English law can be described as having its own legal doctrine, distinct from civil law legal systems since 1189.  There has been no major codification of the law, and subject to statute, the law is developed by judges in court, applying statute, precedent and common sense to the facts before them, to give explanatory judgments of the relevant legal principles, which are reported and binding in future similar cases.  

In the early centuries, the justices and judges were responsible for adapting the Writ system to meet everyday needs, applying a mixture of precedent and common sense to build up a body of internally consistent law, e.g., the Law Merchant began in the PiePowder Courts (or "dusty feet", meaning ad hoc marketplace courts)  As Parliament developed in strength, subject to the doctrine of separation of powers, legislation gradually overtook judicial law-making, so that today judges are only able to innovate in certain very narrowly-defined areas.  The year 1189 was defined in 1276 as being the boundary of time immemorial. 

The courts of England and Wales are headed by the Senior Courts of England and Wales, consisting of the Court of Appeal, the High Court of Justice (for civil cases) and the Crown Court (for criminal cases).  The Supreme Court is the highest court in the land for both criminal and civil appeal cases in England, Wales, and Northern Ireland and any decision it makes is binding on every other court in the same jurisdiction, and often has persuasive effect in its other jurisdictions. 

On appeal, a court may overrule the decisions of its inferior courts, such as county courts (civil) and magistrates' courts (criminal). The High Court may also quash on judicial review both administrative decisions of the Government and delegated legislation.  The ultimate body of appeal for all criminal and civil cases in England and Wales (and Northern Ireland, and for all civil cases in Scots law) is the Supreme Court of the United Kingdom, which took over this function from the Appellate Committee of the House of Lords (usually just referred to as "The House of Lords") in October 2009. 