Courts

Courts

(1)     Over View                (2) Subordinate Court                  (3) Sentencing Power            (4) Separation of Power (5) National Legal Service Authority (NALSA)                 (6) Lok Adalats                           (7) Family Courts               (8) Permanent Lok Adalats

1.1    The Hon. Supreme Court of India holds the top position in judiciary hierarchy in India followed by Hon. High Court in states and Subordinate Courts of High Courts.                                                                           1.2    The state judiciary consists of High Court a hierarchy of subordinate courts also called lower courts. Subordinate courts are so called due to their subordination to the respective High court. It works under High court and High Court regulates it’s subordinate courts.

(2)  Subordinate Court

2.1    According to Article 233 to 237 of Constitution of India, gives a provisions to regulate the organization of subordinate courts and ensures their independence from the executive.

2.2    The organizational structure, jurisdiction and nomenclature of the subordinate judiciary are laid down by the States. Hence, they differ slightly from state to state.

2.3    Subordinate Court is broadly known as District & Session Court. It is available in every district and metropolitan cities. In metropolitan cities there are slight difference in nomenclature.

2.4    Commonly, it can be said that there are a Three-tiers of Civil & Criminal courts below the High Court.

2.5     There are two types of cases –(a) Civil cases (b) Criminal Cases.

2.6    (a) Civil Cases: Such kind of cases involves change of ownership. The highest court in a district for civil cases is called District Court.

(b) Criminal Cases: Such kind of cases deal with punishments whether in terms of judicial custody or fine or even both. The highest court in a district for criminal cases are called Session court or Court of Session.

2.7    The District Judge is the highest judicial authority in a 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 District judge and when he hears the criminal cases, he is known as Session judge.

2.8    The District judge exercises both judicial and administrative powers. He also ha supervisory powers over all the subordinate courts in the district.

2.9    Appeals against orders and judgments of District/Session judge lies with the High Court.

2.10    Below the District & Sessions Courts stands the Court of Subordinate Judge on civil side and the Court of Judicial Magistrates on the criminal side.

2.11    The subordinate judge exercises unlimited pecuniary jurisdiction over civil suits. The Chief Judicial Magistrate (CJM) decides criminal cases which are punishable with imprisonment for a term up to 7 years. However the sentencing powers of Magistrates are discussed in Para 3.

2.12    At the lowest level – (a) Civil side: Court of Munsiff (b) Criminal side: Court of Judicial Magistrates. The Munssiff possesses limited jurisdiction and decides civil cases of small pecuniary stake.

2.13     Courts in Metropolitan cities: In metropolitan cities, there are – (a) Civil side: ‘City Civil Courts (Judicial judges) and (b) Criminal side: Courts of Metropolitan Magistrates.

2.14    Some States and Presidency towns have established small causes courts. These courts decide thei civil cases of small value in a summary manner. Their decisions are final however, The High Court possesses a power of revision.

2.15    In some states, Panchyat Courts are also available and they trie petty civil and ciriminal cases. They are known as Nyaya Panchayat, Gram Kuchery, Adalati panchayat, Panchayat Adalat and so on.

(3) Sentencing Power

3.1    In Criminal Court, different courts/magistrates have different power to impose sentencing with fine or without fine or even both.

3.2    the sentencing power of different level of courts/magistrates in subordinate court for criminal cases/suits are tabulated below:

4.1    In persuasion of scheme of separation of executive from judicial, there are two categories of magistrates are created by Article 50 of the Constitution of India.

4.2    The two categories of magistrates are – (i) Judicial Magistrate: Appointed and regulated by the High Court and discharge judicial functions. (ii) Executive Magistrate: Appointed and controlled by the State Government and discharge executive functions – maintenance of ‘Law & Order’.

4.3    The structure of Executive magistracy within a district is required to be discussed and the same is discussed below:

5.1    Article 39(A) 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 & 22(1) of the Constitution make it obligatory for the States to ensure equality before law and legal system which promotes justice on the basis of equal opportunity to all.

5.2    In 1987, the Legal Services Authorities Act was enacted by the Parliament which came into force on 09/11/1995 to establish a nationwide uniform network for providing free and competent legal service to the weaker sections of the society on the basis of equal opportunity.

5.3    The National Legal Services Authority (NALSA) was constituted by under the Legal Services Authorities Act, 1987 to monitor and evaluate implementation for legal aid programmes and to lay down policies and principals for making legal services available under the Act.

5.4    In every State, a State Legal Services Authority and in every High Court, a High Court Legal Services Committee are constituted. District Legal Services Authorities, Taluk Legal Services Committees are constituted in the District and most of the Taluks to give effect to policies and directions of NALSA and to provide free legal services to the people and conduct Lok Adalats in the State.

5.5    NALSA lays down policies, principles, guidelines and frames effective and economical schemes for the State Legal Service Authorities to implement the Legal Services Programmes throughout the country.

5.6    Functions of State Legal Services Authorites, District Legal Services Authoriteis, Taluk Legal Services Committees etc. are as follows:

(i) To provide free and competent legal services to the eligible persons.

(ii) To organize Lok Adalats for amicable settlement of disputes.

(iii) To organize legal awareness camps in the rural areas.

5.7    Free Legal Services includes: (a) Payment of court fee, process fee 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 fo documents in legal proceedings.

5.8    The persons who are eligible for getting free legal services include:

(a) Woman & Children

(b) Members of SC/ST

(c) Industrial Workmen

(d) Victims of mass disaster, violence, flood, drought, earthquake, industrial disaster

(e) Disabled persons

(f) Persons in custody

(g) Persons whoes annual income does not exceed Rs. 1 Lakh (In the Supreme Court Legal Services Committee, the limit is Rs. 1,25,000).

(h) Victims of trafficking in human beings or beggar.

(6) Lok Adalat

6.1    Lok Adalat is a forum where the cases or disputes which are pending in a court or which are at pre-litigation state (not yet brought before a court) are compromised or settled in an amicable manner.

6.2    Lok Adalat was given statutory status under the Legal Services Authorities Act, 1987.

6.3    Every Lok Adalat organied for an area shall consists 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.

6.4    Generally, a Lok Adalat consists of a judicial officer as the chairman and a lawyer/advocate and a social worker as member.

6.5    Lok Adala has jurisdiction to determine and to arrive at a com;promise or settlement between the parties to a dispute in respect of:

(a) any case pending before any court; or

(b) any matter which is falling within the jurisdiction fo any court and is not brought before such court.

6.6     Matters which are taken up in Lok Adalats are as follows:

(a) Matrimonial/Family disputes,

(b) Criminal (Compoundable Offences) cases

(c) Land Acquisition cases,

(d) Labour disputes,

(e) Workmen’s Compensation cases,

(f) Bank Recovery cases,

(g) Pension cases,

(h) Housing Board and Slum Clearance cases,

(i) Housing Finance cases,

(j) Consumer Grievance cases,

(k) Electricity matters,

(l) Disputes relating to Telephone Bills,

(m) Municipal matters including House Tax cases,

(n) Disputes with Cellular Companies etc.

6.7    Any case pending before the court can be referred to the Lok Adalat for settlement if:

(i) Parties thereof are 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 the Lok Adalat.

6.8 In the case of 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.

6.9 Lok Adalat has the same powers as 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.

6.10     A Lok Adalat has requisite powers to specify it’s own procedure for the determination of any dispute coming before it.

6.11      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 is deemed to be a Civil Court for the purpose of Code of Criminal Procedure (CrPC) 1973.

6.12       An award of a Lok Adalat is 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.

(7)   Family Court

7.1    The Family Court 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.

7.2    The Code of Civil Procedure was amended in 1976 to provide for a special procedure to to be adopted in suits or proceeding relating to matters concerning the family.

7.3    The main objectives and reasons for setting up of Family courts are:

(i) To create a specialized curt which will exclusively deal with family matters so that such a court may have the necessary exercise to deal with these cases expeditiously.

(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.

7.4    The silient features of the Family Courts Act, 1984 are as follows:

(a)    It provides for the establishment of Family Courts by the State Governments in consultation with the High Court.

(b)     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.

(c)    It enables the State Governments to set up Family Courts in other areas also, if they deem it necessary.

(d)     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.

(e)    In a first instance, to effect a reconciliation or a settlement between the parties to a family dispute. During this state, the proceedings will be informal and rigid rules of procedure shall not apply.

(f)     It simplifies the rules of evidence and procedure so as to enable a Family Court to deal effectively with a dispute.

(g)     It provides for only one right of appeal which shall lie to the High Court.

7.5    At present (upto 31/12/2018), total 535 Family Courts are in functional in the country.

7.6       The family court has the power to make their own procedure.   Until these courts  don’t define their own procedure, they need to follow Code of Civil Procedure.  Even Code of Civil Procedure was changed for Family Court.  Family Courts are not required to record the oral statement of the witness at length.

7.7          The Family Court can receive any document or statement even if it is not acceptable under The Indian Evidence Act 1872.

7.8          camera proceedings can be ordered if the parties desire. (In camera proceedings means that the public is not allowed to see the proceedings)

7.9          The appeal from family courts lies directly to the High Court within 30 days of passing the order or the judgement. Such The appeal can be on both question of law and fact.

7.10        Steps to follow for registering a suit in a Family Court :  Following steps are required to be followed-

(a) Such person needs to describe all the details clearly on a watermarked paper and submit along with the court fees and an affidavit.

(b) These files are presented to the Principal Judge of the Family Court.   After verification of each file and hearing the petitioners, the Principal Judge decides for further steps.

(c) The applicant files the summons form for notice on the opposite parties.

7.11       The family court can entertain the petition relating to the property dispute between the parties to a marriage only, but it has no jurisdiction to entertain the applications in case involving a dispute between brothers, sisters, father, mother concerning property.

7.12       Two pillars on which the whole structure of family courts is built  are Counselling and conciliation.

7.13        The Family Courts Act also covers areas of the following acts:

(a) The Hindu Marriage Act, 1955

(b) Special Marriage Act, 1954

(c) Hindu Adoption and Maintenance Act, 1956

(d) Parsi Marriage and Divorce Act, 1936

(e) The Indian Divorce Act, 1869

(f) The Christian Marriage Act, 1972

(g) Dissolution of Muslim Marriage Act, 1939

(h) The Code of Criminal Procedure  1973 (Sec. 125 to 128)

(i)  The Guardians andn Wards Act, 1890

7.14        The Family Court Act, stipulates that a party is not entitled to be represented by a lawyer without the express permission of the court.  However, invariably the court grants this permission and practically, it is a lawyer which represents the parties.

7.15        The most unique aspect regarding the proceedings before the Family Court are that they are first referred to conciliation and only when the conciliation proceedings fail to resolve the issue successfully, the matter taken up for trial by the Court.

7.16        The Conciliators are professionals who are appointed by the Court.

7.17        Conciliation: Conciliation is an alternative out-of-court dispute resolution instrument. Like mediation, conciliation is a voluntary, flexible, confidential, and interest based process. The parties seek to reach an amicable dispute settlement with the assistance of the conciliator who acts as a neutral third party.

7.18     Mediation: Mediation is an informal and flexible dispute resolution process. The mediator’s role is to guide the parties toward their own resolution.  Through joint sessions and separate caucuses with parties, the mediator helps both sides define the issues clearly, understand each other’s position and move closer to resolution.

In a mediation procedure, a neutral intermediary, the mediator, helps the parties to reach a mutually satisfactory settlement of their dispute. Any settlement is recorded in an enforceable contract.  The principal characteristics of mediation are: Mediation is a non-binding procedure controlled by the parties.

(8) Permanent Lok Adalats

8.1    The Legal Services Authority Acts, 1987 as amended in 2002 to provide for establishment of the Permanent Lok Adalats to deal with cases pertaining to the public utility services.

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