The state judiciary consists of a high court and a hierarchy of subordinate courts, also known as lower courts. The subordinate courts are so called because of their subordination to the state high court. They function below and under the high court at district and lower levels.
Articles 233 to 237 in Part VI of the Constitution make the following provisions to regulate the organization of subordinate courts and to ensure their independence from the executive1.
1. Appointment of District Judges The appointment, posting and promotion of district judges in a state are made by the governor of the state in consultation with the high court.
A person to be appointed as district judge should have the following qualifications:
(a) He should not already be in the service of the Central or the state government.
(b) He should have been an advocate or a pleader for seven years.
(c) He should be recommended by the high court for appointment.
2. Appointment of other Judges Appointment of persons (other than district judges) to the judicial service of a state are made by the governor of the state after consultation with the State Public Service Commission and the high court2.
3. Control over Subordinate Courts The control over district courts and other subordinate courts including the posting, promotion and leave of persons belonging to the judicial service of a state and holding any post inferior to the post of district judge is vested in the high court.
4. Interpretation The expression ‘district judge’ includes judge of a city civil court, additional district judge, joint district judge, assistant district judge, chief judge of a small cause court, chief presidency magistrate, additional chief presidency magistrate, sessions judge, additional sessions judge and assistant sessions judge.
The expression ‘judicial service’ means a service consisting exclusively of persons intended to fill the post of district judge and other civil judicial posts inferior to the post of district judge.
5. Application of the above Provisions to Certain Magistrates The Governor may direct that the above mentioned provisions relating to persons in the state judicial service would apply to any class or classes of magistrates in the state.
Structure and Jurisdiction
The organisational structure, jurisdiction and nomenclature of the subordinate judiciary are laid down by the states. Hence, they differ slightly from state to state. Broadly speaking, there are three tiers of civil and criminal courts below the High Court. This is shown as follows:
The district judge is the highest judicial authority in the district. He possesses original and appellate jurisdiction in both civil as well as criminal matters. In other words, the district judge is also the sessions judge. When he deals with civil cases, he is known as the district judge and when he hears the criminal cases, he is called as the sessions judge. The district judge exercises both judicial and administrative powers. He also has supervisory powers over all the subordinate courts in the district. Appeals against his orders and judgements lie to the High Court. The sessions judge has the power to impose any sentence including life imprisonment and capital punishment (death sentence). However, a capital punishment passed by him is subject to confirmation by the High Court, whether there is an appeal or not.
Below the District and Sessions Court stands the Court of Subordinate Judge on the civil side and the Court of Chief Judicial Magistrate on the criminal side. The subordinate judge exercises unlimited pecuniary jurisdiction over civil suits3. The chief judicial magistrate decides criminal cases which are punishable with imprisonment for a term up to seven years.
At the lowest level, on the civil side, is the Court of Munsiff and on the criminal side, is the Court of Judicial Magistrate. The munsiff possesses limited jurisdiction and decides civil cases of small pecuniary stake4. The judicial magistrate tries criminal cases which are punishable with imprisonment for a term up to three years.
In some metropolitan cities, there are city civil courts (chief judges) on the civil side and the courts of metropolitan magistrates on the criminal side.
Some of the States and Presidency towns have established small causes courts5. These courts decide the civil cases of small value in a summary manner. Their decisions are final, but the High Court possesses a power of revision.
In some states, Panchayat Courts try petty civil and criminal cases. They are variously known as Nyaya Panchayat, Gram Kutchery, Adalati Panchayat, Panchayat Adalat and so on.
National Legal Services Authority6
Article 39A of the Constitution of India provides for free legal aid to the poor and weaker sections of the society and ensures justice for all. Articles 14 and 22(1) of the Constitution also make it obligatory for the State to ensure equality before law and a legal system which promotes justice on the basis of equal opportunity to all. In the year 1987, the Legal Services Authorities Act was enacted by the Parliament which came into force on 9th November, 1995 to establish a nationwide uniform network for providing free and competent legal services to the weaker sections of the society on the basis of equal opportunity. The National Legal Services Authority (NALSA) has been constituted under the Legal Services Authorities Act, 1987 to monitor and evaluate implementation of legal aid programmes and to lay down policies and principles for making legal services available under the Act.
In every State, a State Legal Services Authority and in every High Court, a High Court Legal Services Committee have been constituted. District Legal Services Authorities, Taluk Legal Services Committees have been constituted in the Districts and most of the Taluks to give effect to the policies and directions of the NALSA and to provide free legal services to the people and conduct Lok Adalats in the State.
Supreme Court Legal Services Committee has been constituted to administer and implement the legal services programme insofar as it relates to the Supreme Court of India.
NALSA lays down policies, principles, guidelines and frames effective and economical schemes for the State Legal Services Authorities to implement the Legal Services Programmes throughout the country.
Primarily, the State Legal Services Authorities, District Legal Services Authorities, Taluk Legal Services Committees, etc. have been asked to discharge the following main functions on regular basis :
1. To provide free and competent legal services to the eligible persons.
2. To organize Lok Adalats for amicable settlement of disputes.
3. To organize legal awareness camps in the rural areas.
The free legal services include:-
(a) Payment of court fee, process fees and all other charges payable or incurred in connection with any legal proceedings.
(b) Providing service of lawyers in legal proceedings.
(c) Obtaining and supply of certified copies of orders and other documents in legal proceedings.
(d) Preparation of appeal, paper book including printing and translation of documents in legal proceedings.
The persons eligible for getting free legal services include:-
(i) Women and children
(ii) Members of SC/ST
(iii) Industrial workmen
(iv) Victims of mass disaster, violence, flood, drought, earthquake, industrial disaster
(v) Disabled persons
(vi) Persons in custody
(vii) Persons whose annual income does not exceed Rs. 1 lakh (in the Supreme Court Legal Services Committee the limit is Rs. 1,25,000/-).
(viii) Victims of trafficking in human beings or begar.
Lok Adalat is a forum where the cases (or disputes) which are pending in a court or which are at pre-litigation stage (not yet brought before a court) are compromised or settled in an amicable manner.
The Supreme Court has explained the meaning of the institution of Lok Adalat in the following way7:
The ‘Lok Adalat’ is an old form of adjudicating system prevailed in ancient India and it’s validity has not been taken away even in the modern days too. The word ‘Lok Adalat’ means ‘People’s Court’. This system is based on Gandhian principles. It is one of the components of ADR (Alternative Dispute Resolution) system. As the Indian courts are overburdened with the backlog of cases and the regular courts are to decide the cases involving a lengthy, expensive and tedious procedure. The court takes years together to settle even petty cases. Lok Adalat, therefore, provides alternative resolution or devise for expedious and inexpensive justice.
In Lok Adalat proceedings, there are no victors and vanquished and, thus, no rancour.
The experiment of ‘Lok Adalat’ as an alternate mode of dispute settlement has come to be accepted in India, as a viable, economic, efficient and informal one.
The Lok Adalat is another alternative in judicial justice. This is a recent strategy for delivering informal, cheap and expeditious justice to the common man by way of settling disputes, which are pending in courts and also those, which have not yet reached courts by negotiation, conciliation and by adopting persuasive, common sense and human approach to the problems of the disputants, with the assistance of specially trained and experienced members of a team of conciliators.
The first Lok Adalat camp in the post-independence era was organized in Gujarat in 1982. This initiative proved very successful in the settlement of disputes. Consequently, the institution of Lok Adalat started spreading to other parts of the country. At that time, this institution was functioning as a voluntary and conciliatory agency without any statutory backing for its decisions. In view of its growing popularity, there arose a demand for providing a statutory backing to this institution and the awards given by Lok Adalats. Hence, the institution of Lok Adalat has been given statutory status under the Legal Services Authorities Act, 1987.
The Act makes the following provisions relating to the organization and functioning of the Lok Adalats:
1. The State Legal Services Authority or the District Legal Services Authority or the Supreme Court Legal Services Committee or the High Court Legal Services Committee or the Taluk Legal Services Committee may organize Lok Adalats at such intervals and places and for exercising such jurisdiction and for such areas as it thinks fit.
2. Every Lok Adalat organized for an area shall consist of such number of serving or retired judicial officers and other persons of the area as may be specified by the agency organizing such Lok Adalat. Generally, a Lok Adalat consists of a judicial officer as the chairman and a lawyer (advocate) and a social worker as members.
3. A Lok Adalat shall have jurisdiction to determine and to arrive at a compromise or settlement between the parties to a dispute in respect of :
(i) any case pending before any court; or
(ii) any matter which is falling within the jurisdiction of any court and is not brought before such court.
Thus, the Lok Adalat can deal with not only the cases pending before a court but also with the disputes at pre-litigation stage.
Matters such as Matrimonial / Family Disputes, Criminal (Compoundable Offences) cases, Land Acquisition cases, Labour disputes, Workmen’s compensation cases, Bank Recovery cases, Pension cases, Housing Board and Slum Clearance cases, Housing Finance cases, Consumer Grievance cases, Electricity matters, Disputes relating to Telephone Bills, Municipal matters including House Tax cases, Disputes with Cellular Companies etc. are being taken up in Lok Adalats.7a
But, the Lok Adalat shall have no jurisdiction in respect of any case or matter relating to an offence not compoundable under any law. In other words, the offences which are non-compoundable under any law fall outside the purview of the Lok Adalat.
4. Any case pending before the court can be referred to the Lok Adalat for settlement if :
(i) the parties thereof agree to settle the dispute in the Lok Adalat; or
(ii) one of the parties thereof makes an application to the court, for referring the case to the Lok Adalat; or
(iii) the court is satisfied that the matter is an appropriate one to be taken cognizance of by the Lok Adalat.
In the case of a pre-litigation dispute, the matter can be referred to the Lok Adalat for settlement by the agency organizing the Lok Adalat, on receipt of an application from any one of the parties to the dispute.
5. The Lok Adalat shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure (1908), while trying a suit in respect of the following matters:
(a) the summoning and enforcing the attendance of any witness examining him on oath;
(b) the discovery and production of any document;
(c) the reception of evidence on affidavits;
(d) the requisitioning of any public record or document from any court or office; and
(e) such other matters as may be prescribed.
Further, a Lok Adalat shall have the requisite powers to specify its own procedure for the determination of any dispute coming before it. Also, all proceedings before a Lok Adalat shall be deemed to be judicial proceedings within the meaning of the Indian Penal Code (1860) and every Lok Adalat shall be deemed to be a Civil Court for the purpose of the Code of Criminal Procedure (1973).
6. An award of a Lok Adalat shall be deemed to be a decree of a Civil Court or an order of any other court. Every award made by a Lok Adalat shall be final and binding on all the parties to the dispute. No appeal shall lie to any court against the award of the Lok Adalat.
According to the Supreme Court, the benefits under Lok Adalat are as follows8:
1. There is no court fee and if court fee is already paid the amount will be refunded if the dispute is settled at Lok Adalat.
2. The basic features of Lok Adalat are the procedural flexibility and speedy trial of the disputes. There is no strict application of procedural laws like the Civil Procedure Code and the Evidence Act while assessing the claim by Lok Adalat.
3. The parties to the dispute can directly interact with the judge through their counsel which is not possible in regular courts of law.
4. The award by the Lok Adalat is binding on the parties and it has the status of a decree of a civil court and it is non-appealable, which does not cause the delay in the settlement of disputes finally.
In view of above facilities provided by the Act, Lok Adalats are boon to the litigating public as they can get their disputes settled fast and free of cost amicably.
The Law Commission of India summarized the advantages of ADR (Alternative Dispute Resolution) in the following way9:
1. It is less expensive.
2. It is less time-consuming.
3. It is free from technicalities vis-à-vis conducting of cases in law courts.
4. Parties are free to discuss their differences of opinion without any fear of disclosure before any law courts.
5. Parties have the feeling that there is no losing or winning side between them but at the same time their grievance is redressed and their relationship is restored.
Permanent Lok Adalats
The Legal Services Authorities Act, 1987 was amended in 2002 to provide for the establishment of the Permanent Lok Adalats to deal with cases pertaining to the public utility services.
The reasons for the establishment of Permanent Lok Adalats are as follows:
1. The Legal Services Authorities Act, 1987 was enacted to constitute legal services authorities for providing free and competent legal services to the weaker sections of the society to ensure that opportunities for securing justice were not denied to any citizen by reason of economic or other disabilities and to organize Lok Adalats to ensure that the operation of the legal system promotes justice on a basis of equal opportunity.
2. The system of Lok Adalat, which is an innovative mechanism for alternate dispute resolution, has proved effective for resolving disputes in a spirit of conciliation outside the courts.
3. However, the major drawback in the existing scheme of organization of the Lok Adalats under the said Act is that the system of Lok Adalats is mainly based on compromise or settlement between the parties. If the parties do not arrive at any compromise or settlement, the case is either returned to the court of law or the parties are advised to seek remedy in a court of law. This causes unnecessary delay in the dispensation of justice. If Lok Adalats are given power to decide the cases on merits in case parties fails to arrive at any compromise or settlement, this problem can be tackled to a great extent.
4. Further, the cases which arise in relation to public utility services such as Mahanagar Telephone Nigam Limited, Delhi Vidyut Board, etc., need to be settled urgently so that people get justice without delay even at pre-litigation stage and thus most of the petty cases which ought not to go in the regular courts would be settled at the pre-litigation stage itself which would result in reducing the workload of the regular courts to a great extent.
5. It is, therefore, proposed to amend the Legal Services Authorities Act, 1987 to set up Permanent Lok Adalats for providing compulsory pre-litigative mechanism for conciliation and settlement of cases relating to public utility services.
The salient features of the new institution of Permanent Lok Adalats are as follows:-
1. The Permanent Lok Adalat shall consist of a Chairman who is or has been a district judge or additional district judge or has held judicial office higher in rank than that of the district judge and two other persons having adequate experience in public utility services.
2. The Permanent Lok Adalat shall exercise jurisdiction in respect of one or more public utility services such as transport services of passengers or goods by air, road and water; postal, telegraph or telephone services; supply of power, light or water to the public by any establishment; public conservancy or sanitation; services in hospitals or dispensaries; and insurance services.
3. The pecuniary jurisdiction of the Permanent Lok Adalat shall be up to rupees ten lakhs. However, the Central Government may increase the said pecuniary jurisdiction from time to time.
4. The Permanent Lok Adalat shall have not jurisdiction in respect of any matter relating to an offence not compoundable under any law.
5. Before the dispute is brought before any court, any party to the dispute may make an application to the Permanent Lok Adalat for settlement of the dispute. After an application is made to the Permanent Lok Adalat, no party to that application shall invoke jurisdiction of any court in the same dispute.
6. Where it appears to the Permanent Lok Adalat that there exist elements of a settlement, which may be acceptable to the parties, it shall formulate the terms of a possible settlement and submit them to the parties for their observations and in case the parties reach an agreement, the Permanent Lok Adalat shall pass an award in terms thereof. In case parties to the dispute fail to reach an agreement, the Permanent Lok Adalat shall decide the dispute on merits.
7. Every award made by the Permanent Lok Adalat shall be final and binding on all the parties thereto and shall be by a majority of the persons constituting the Permanent Lok Adalat.
The Family Courts Act, 1984 was enacted to provide for the establishment of Family Courts with a view to promote conciliation and secure speedy settlement of disputes relating to marriage and family affairs.
The reasons for the establishment of separate Family Courts are as follows:
1. Several associations of women, other organizations and individuals have urged, from time to time, that Family Courts, be set up for the settlement of family disputes, where emphasis should be laid on conciliation and achieving socially desirable results and adherence to rigid rules of procedure and evidence should be eliminated.
2. The Law Commission in its 59th report (1974) had also stressed that in dealing with disputes concerning the family the Court ought to adopt an approach radically different from the adopted in ordinary civil proceedings and that it should make reasonable efforts at settlement before the commencement of the trial. The Code of Civil Procedure was amended in 1976 to provide for a special procedure to be adopted in suits or proceedings relating to matters concerning the family.
3. However, not much use has been made by the Courts in adopting this conciliatory procedure and the Courts continue to deal with family disputes in the same manner as other civil matters and the same adversary approach prevails. The need was, therefore, felt, in the public interest, to establish Family Courts for speedy settlement of family disputes.
Therefore, the main objectives and reasons for setting up of Family Courts are:10
(i) To create a Specialized Court which will exclusively deal with family matters so that such a court may have the necessary expertise to deal with these cases expeditiously. Thus expertise and expeditious disposal are two main factors for establishing such a court;
(ii) To institute a mechanism for conciliation of the disputes relating to family;
(iii) To provide an inexpensive remedy; and
(iv) To have flexibility and an informal atmosphere in the conduct of proceedings.
The salient features of the Family Courts Act, 1984 are as follows:
1. It provides for the establishment of Family Courts by the State Governments in consultation with the High Courts.
2. It makes it obligatory on the State Governments to set up a Family Court in every city or town with a population exceeding one million.
3. It enables the State Governments to set up Family Courts in other areas also, if they deem it necessary.
4. It exclusively provides within the jurisdiction of the Family Courts the matters relating to:-
(i) matrimonial relief, including nullity of marriage, judicial separation, divorce, restitution of conjugal rights, or declaration as to the validity of marriage or as to the matrimonial status of any person;
(ii) the property of the spouses or of either of them;
(iii) declaration as to the legitimacy of any person;
(iv) guardianship of a person or the custody of any minor; and
(v) maintenance of wife, children and parents.
5. It makes it obligatory on the part of the Family Court to endeavour, in the first instance to effect a reconciliation or a settlement between the parties to a family dispute. During this stage, the proceedings will be informal and rigid rules of procedure shall not apply.
6. It provides for the association of social welfare agencies, counsellors, etc., during conciliation stage and also to secure the service of medical and welfare experts.
7. It provides that the parties to a dispute before a Family Court shall not be entitled, as of right, to be represented by legal practitioner. However, the Court may, in the interest of justice, seek assistance of a legal expert as amicus curiae.
8. It simplifies the rules of evidence and procedure so as to enable a Family Court to deal effectively with a dispute.
9. It provides for only one right of appeal which shall lie to the High Court.
At present (2016), a total of 438 Family Courts are functional in the country. The State-wise position is indicated below in Table 35.1.
Table 35.1 Establishment of Family Courts (2016)
|Sl.No.||States/UTs||Number of Family Courts|
|11.||Jammu and Kashmir||—|
Source: Ministry of Law and Justice, Government of India.
The Gram Nyayalayas Act, 2008 has been enacted to provide for the establishment of the Gram Nyayalayas at the grass roots level for the purposes of providing access to justice to the citizens at their doorsteps and to ensure that opportunities for securing justice are not denied to any citizen due to social, economic or other disabilities.
The reasons for the establishment of Gram Nyayalayas are as follows:
1. Access to justice by the poor and disadvantaged remains a worldwide problem despite diverse approaches and strategies that have been formulated and implemented to address it. In our country, Article 39A of the Constitution directs the State to secure that the operation of the legal system promotes justice, on a basis of equal opportunity and shall provide free legal aid to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.
2. In the recent past, the Government has taken various measures to strengthen judicial system, inter alia, by simplifying the procedural laws; incorporating various alternative dispute resolution mechanisms such as arbitration, conciliation and mediation; conducting of Lok Adalats, etc. These measures are required to be strengthened further.
3. The Law Commission of India in its 114th Report on Gram Nyayalaya suggested establishment of Gram Nyayalayas so that speedy, inexpensive and substantial justice could be provided to the common man. The Gram Nyayalayas Act, 2008 is broadly based on the recommendations of the Law Commission.
4. Justice to the poor at their door step is a dream of the poor. Setting up of Gram Nyayalayas in the rural areas would bring to the people of rural areas speedy, affordable and substantial justice.
The salient features of the Gram Nyayalayas Act are as follows11:-
1. The Gram Nyayalaya shall be court of Judicial Magistrate of the first class and its presiding officer (Nyayadhikari) shall be appointed by the State Government in consultation with the High Court.
2. The Gram Nyayalaya shall be established for every Panchayat at intermediate level or a group of contiguous Panchayats at intermediate level in a district or where there is no Panchayat at intermediate level in any State, for a group of contiguous Panchayats.
3. The Nyayadhikaris who will preside over these Gram Nyayalayas are strictly judicial officers and will be drawing the same salary, deriving the same powers as First Class Magistrates working under High Courts.
4. The Gram Nyayalaya shall be a mobile court and shall exercise the powers of both Criminal and Civil Courts.
5. The seat of the Gram Nyayalaya will be located at the headquarters of the intermediate Panchayat, they will go to villages, work there and dispose of the cases.
6. The Gram Nyayalaya shall try criminal cases, civil suits, claims or disputes which are specified in the First Schedule and the Second Schedule to the Act.
7. The Central as well as the State Governments have been given power to amend the First Schedule and the Second Schedule of the Act, as per their respective legislative competence.
8. The Gram Nyayalaya shall follow summary procedure in criminal trial.
9. The Gram Nyayalaya shall exercise the powers of a Civil Court with certain modifications and shall follow the special procedure as provided in the Act.
10. The Gram Nyayalaya shall try to settle the disputes as far as possible by bringing about conciliation between the parties and for this purpose, it shall make use of the conciliators to be appointed for this purpose.
11. The judgment and order passed by the Gram Nyayalaya shall be deemed to be a decree and to avoid delay in its execution, the Gram Nyayalaya shall follow summary procedure for its execution.
12. The Gram Nyayalaya shall not be bound by the rules of evidence provided in the Indian Evidence Act, 1872 but shall be guided by the principles of natural justice and subject to any rule made by the High Court.
13. Appeal in criminal cases shall lie to the Court of Session, which shall be heard and disposed of within a period of six months from the date of filing of such appeal.
14. Appeal in civil cases shall lie to the District Court, which shall be heard and disposed of within a period of six months from the date of filing of the appeal.
15. A person accused of an offence may file an application for plea bargaining.
The Central Government has decided to meet the non-recurring expenditure on the establishment of these Gram Nyayalayas subject to a ceiling of Rs. 18.00 lakhs out of which Rs. 10.00 lakhs is for construction of the court, Rs. 5.00 lakhs for vehicle and Rs. 3.00 lakhs for office equipment.
More than 5000 Gram Nyayalayas are expected to be set up under the Act for which the Central Government would provide about Rs.1400 crores by way of assistance to the concerned States/Union Territories.
Under of the Gram Nyayalayas Act, 2008, it is for the State Governments to establish Gram Nyayalayas in consultation with the respective High Courts. The State-wise progress of setting up of Gram Nyayalayas till 2016 is shown below in Table 35.2.
Table 35.2 Establishment of Gram Nyayalayas (2016)
|Sl.No.||States||Gram Nyayalayas Notified||Gram Nyayalayas Functional|
Source: Ministry of Law and Justice, Government of India.
Majority of States have now set up regular courts at Taluka level. Further, reluctance of police officials and other State functionaries to invoke jurisdiction of Gram Nyayalayas, lukewarm response of the Bar, non-availability of notaries and stamp vendors, problem of concurrent jurisdiction of regular courts are other issues indicated by the States which are coming in the way of operationalization of the Gram Nyayalayas.
The issues affecting operationalization of the Gram Nyayalayas were discussed in the Conference of Chief Justices of High Courts and Chief Ministers of the States in April, 2013. It was decided in the Conference that the State Government and High Court should decide the question of establishment of Gram Nyayalayas wherever feasible, taking into account their local problems. The focus is on setting up Gram Nayayalayas in the Talukas where regular courts have not been set up.
Table 35.3 Articles Related to Subordinate Courts at a Glance
|233.||Appointment of district judges|
|233A.||Validation of appointments of, and judgements, etc., delivered by certain district judges|
|234.||Recruitment of persons other than district judges to the judicial service|
|235.||Control over subordinate courts|
|237.||Application of the provisions of this Chapter to certain class or classes of Magistrates|