Student Corner
Ritika kataria
The sessions court is the highest court at the district level to decide upin criminal matters. The state government has the responsibility of establishing court of sessions for ever session division. It is generally presided over by a judge who is appointed by the high court.
Tribunals -
These are a quasi judicial body that are involved in dispute resolution towards access to justice. For instance CAT,SAT,TRAI etc.
other formal adjudicatory forums include NHRC, SHRC etc but they don’t have the power to enforce the report prepared.
Informal justice -
It focuses on building social relationships and networks and in turn achieving a speedy , effective as well as economic justice. It has always been an important component of the Indian society since ages. This firm of justice has often been called the appropriate method of dispute resolution as its success is over reaching.
Access to justice is a basic right that guarantees protection of law to all. It ensures that people can demand their rights to be protected un case of violation, thus making it a minimum prerequisite. It is an essential element of the rule of law and therefore of democracy.
This concept has undergone an impo transformation. Traditionally, it meant access to courts or lgal assistance. But then arised the point of making courts more accessible for the litigrants. Thus, in the modern era, justice can be accessed through fundamental rights that enjoy its place in the constitution.
Free legal aid, recognition of class action, and alternative dispute resolution process pave the way to justice and a certain mechanism for its dispensation are a sine qua non. Through dispensation of justice, the enacted laws establish the rights and duties of the citizens as well as the state , which are kept in check by the courts that determine the rights of the parties.
What is justice? The concept of justice occupies centre stage in politics, philosophy, ethics, religion, ideology, culture, etc. Thus it can be said that justice is nubulous as it takes on different meanings in different practical contexts. Justice is desired by everyone irrespective of their age, religion, gender, etc.
Traditionally, justice was seen as a moral virtue of character. It was attributed to virtues like fairness, equality, morality anf impartialness that a political society would require to posess. In Plato’s words, “ Justice is giving each person his due.”
In India, justice is considered as a bounded duty. In ancient times, Ashoka put justice as equivalent to dharma. Justice is an obligation in India. The part III of our constitution that is known as Magna Carta, contains a comprehensive list of the justiciable fundamental rights.
In the modern view, justice is achieved when rights are enforced in accowith the law. In addition, justice is guaranteed in the presence of remedies to enforce rights.
Thera are 2 types of justice system-
1. Adversarial- It aims to get the truth through the open competition between the prosecution and the defence.
2. Inquisitorial- It generally aims to get the truth of the matter through extensive investigation and examination of all evidence.
Formal access to justice
The state appointed judiciary protects and enforced the rights of individual and punished the wrong doer. In this system, the people have access to state administered justice. Lawyers, judges, etc play a significant role. A procedure that is based on predetermined substantive laws that are brought before the system dependent upon rules of evidence falls under formal justice system.
Hierarchy of courts
1. Supreme Court that consists of a Chief Justice and 33 judes, appointed by the President.
2. High court that work under the direct supervision of the Supreme Court. There are 25 High Courts in India.
3. Civil courts and its hierarchy-
i) district court
ii) district judge
iii) civil judge senior division
iv) civil judge junior division
The United Nations has laid down certain principles of standards and norms for securing justice to the victims of crime and abuse of power. Some of it are mentioned as follows:
1. The Aarhus Convention - it is based on acces to information, public participation in decision making and access to justice in environmental matters. It was formed in 1998.
2. World Trade Organisation- it is a dispute settlement body. It has an appellate body named DSB that provides solution to the members of WTO arising under its agreement.
3. North American Free Trade Agreement- it provides an inter state dispute mechanism that eliminates trade barriers and enables cross boundary transfer of products and services.
4. Human Rights Council was also established under the UN as an intergovernmental body responsible for human rights.
Access to justice under the Indian Constitution
In accordance with the Constitution, India is a welfare state and thus it is its obligation to ensure equal administration as justice. The preamble promises to further strengthen justice socially, economically, and politically. Audi alteram partem (hear to the other side) denotes that every party shall get an opportunity of hearing and no one shall go unheard in a case. It is implicit in Article 14 of the Constitution.
If a state fails to fulfill its obligation to provide legal assistance to those who cannot afford it, the aggrieved party can get enforced under the article 32 or 226 with the help of Supreme Court or High Court.
In the Indian constitution, the form of government adopted by the Indian Constitution is based on the will of the people as expressed in elections. is used to give political, economic, and social democracy, among other things. Free and fair elections, equal participation of all citizens as well aa awareness are its key objectives.
Republic
Under this, the head if the state is directly or indirectly an elected official and all the offices are open to all the cutizens of India.
Objectives of the Indian Preamble
1. Justice
It includes economic,social as well as political justice. A just and egalitarian society is the ideal type for India.
2. Liberty
It is ensured through a set of fundamental rights enshrined in the constitution. It guarantees rights such as: freedom of thought, expression, belief,faith, and worship.
3. Equality
To uphold democracy and justice, socio-political as well as economic equality is granted to every citizen of India.
It stands for the spirit of common brotherhood. It is essential in a plural society like India. It ensures dignity of the individuals and unity and integrity of the nation. The same has been mentioned in Article 51A of the constitution.
Legal aspect of preamble
It gives a direction and purpose to the constitution. It is to be retorted only when the language is itself capable of than one meaning as explained in the state of Rajasthan VS Basant Nahata case.
This arises the question of whether the preamble is a part of the constitution or not?
This is has been well explained in two significant cases:
1. The beru bari case
The supreme court opined that the preamble is not a part of the constitution. The preamble is a key to open the minds of the makers of the constitution.
And
2. The Kesavananda Bharti case
Where it was concluded that the preamble has an essential l role to play in the interpretation of the statutes and the constitution but it is not a source of power or a source of limitation.
The doctrine of basic structure signifies the basic features of the constitution that cannot be amended. Its firts reference was in the Sajjan singh vs state of Rajasthan. The doctrine states that the constitution can be amended without interference in the basic foundation and structure of the constitution.
The basic structure is inspired from article 1-19 in the German constitution.
In India, the basic structure is a judicial innovation. In the kesavnanda bharti case, CJI Sikri kaid down a list of features that included the supremacy of the constitution, democratic and republic govt, federal character of the constitution,etc.
Indira Gandhi VS Raj Narain case states that India is sovereign democratic republic and that the state shall have no official religion. The nationa shall be governed by the law.
The preamble is the soul of the constitution that expresses the ideals and aspirations of the modern India. It declares India to be a sovereign socialist secular democratic republic committed to justice quality and liberty for the people. Though it isn’t enforceable but the Indian courts have treated it as a guiding light in the interpersonal of the constitution from time to time.
The preamble is based on an objective resolution from 13 dec 1946. It was adopted in 1949. Pandit thakur das bhargav called it a key and jewel set in the constitution. Nani palkhivala set the identity card of the constitution. Justice was adopted from the russian revolution while liberty,equality and fraternity were adopted from the French Revolution.
Mentioned in the Part III of the Indian constitution, these are considered as the basic human rights to all citizens irrespective of any kind of discrimination. They uphold the f dignity of an individual and promote the integrity of the nation.
The dpsp are also fundamental of governance. The INC adopted a resolution between 1917-1919 demanding civil liberties.
The govt of india act aka Montaque-Chelmsford reforms in 1919.
The Nehru committee was formed in 1927 to draft a swaraj constitution that included guaranteed fundamental rights for all Indians. A resolution was drafted by J.Nehru that came out as a base for dpsp. The first sitting of the constituent assembly took place on 9 December 1946 and it moved a resolution on 13 December 1946. A sub committee in the assembly under the chairmanship of JB Kriplani was formed in 1947 whose report on fundamental rights was adopted in December 1948.
kshitiz Bhardwaj
In keeping with law , justice Is fairness in the that way people Are treated. It is enforcement of rights that are defined by various cannon. Adjudicator are assigned to secure and enforce right and duties. Judiciary is liable for adjudication and to punish the wrongdoer. Adversarial and inqisitorial are two kind of judicial system. In adverserial, it seeks the truth by putting parties against each other in hope that competition will reveal it. On other hand inquistorial is legal system in which the court or part of court is actively involved in investigation. In formal system of access to Justice, lawyer Judges, et cetera plays vital role in access to Justice, we have courts, tribunal, and other forms. Also, it is a system based on predetermined substantive law that is civil and criminal law .system work upon the rule of evidence. In India, we have Hierarchy of court . We have Supreme Court which is also Known as the apex court in india . Presently, we have one chief justice and thirty three other judges Which are appointed by president of india. We, the people of india, can also file a writ against violation of any fundamental right directly to the supreme court.
At the number two, we have high courts Which work under the supervision of supreme court . High court have a chief justice which is appointed by President CJI and the governor of state. The retirement age of judges in supreme court is 65, while in high court retirement ages 62 years.
Law and justice are inextricably linked to each other. It become difficult to distinguish between them. Justice exists due to law and without justice ,law is impractical. Justice is influenced by five major factors politics ,ideology, ,religion
,ethics, culture. It is need of every social being that exists in any form. The view of Justice is, meanwhile, divided into 2 parts. Traditional and modern ancient philosopher contributed to the definition of Justice, but the attempts are hopeless. It is broad idea and concept. Traditional says that King was the head of Justice in ancient context, but now Justice works on the principle of law, Dharma is Justice .modern says that Justice is our duty responsibility and we are bound to take it and give it. law and Justice being interrelated states that the circumstances and situation plays vital role in influencing justice. Without remedy no low exist and remedy grant justice to individual.
-kshitiz Bhardwaj
IThe supreme court, the high court, and the session court at each district adjudicate the criminal matters. Classes of criminal court at the district level are as follow : Court of sessions, judicial magistrate first class ,judicial modest rate second class.
It works under the direction of state government. State government establish court and judges were appointed by high court of state. Tribunals are judicial or quasi judicial institution Established by law. Tribunals are classified on three basis ; Service matter ,environmand company matter. CAT ,NGT , COMPAT, respectively. Our example of such tribunals.
It is an extraordinary court established outside of ordinary judiciary example labor court, family court.
Informal justice tend to address a wide range of issue of significant concern to people, including personal security and local crimes. His dispute resolution is motto of informal justic. The system is speedy economic and amicable. Nyaya panchayat's local adult negotiation mediation are form of informal justice.
The doctrine of basic structure is nothing but a judicial innovation to ensure that the power of amendment is not misused by parliament. It signifies the basic feature of constitution which can not be amended.
It was kesavananda bharti case that brought doctrine into limelight. It was held that the structure of indian constitution could not be abrogated even by amendment. Judgment listed some basic structure as follow : supremacy of constitution
unity and sovereignty of nation
Democratic and republican form of government
Federal character
secular character
Is separation of power
individual freedom
Overtime, many other features have also been added I.e. Rule of law judicial review
And article 32,136,142 ,147 etc.
Another landmark case was indra naharu gandhi versus a raj narain that created history and Led to imposition of emergency in 1975. Indira gandhi was found guilty of electoral malpractice.
It proclaim india as sovereign, democratic, republic and also secular and socialist.
A preamble Is the most precious part of our constitution. It explained philosophy and objective of our constitution. Preamble give idea of following things ,
Source of constitution, Is nature of indian state, It's objective, And date of adoption.
Ideal behind preamble were laid down by jawaharlal nehru and was adopted 22 Jan ,1947.
Source of authorities lie in the hand of we the people of india. It declare india as sovering secular socialists democratic republic. And it's objective all to secure justice equality liberty and fraternity. And it is adopted on 26 november, 1949.
Two landmark cases influence the acceptance of preamble. First is baru berubari case , In which court stated that the preamble is key to open the mind of maker, but it can Not considered part of constitution. Therefore it is not enforceable by law.
Second case is kesavananda Bharti, Colt held that the preamble will now be considered as part of constitution.
The constitution is supreme law and it helped to maintain integrity in society to promote unity among citizen and to build a great nation.
A preamble Is the most precious part of our constitution. It explained philosophy and objective of our constitution. Preamble give idea of following things ,
Source of constitution, Is nature of indian state, It's objective, And date of adoption.
Ideal behind preamble were laid down by jawaharlal nehru and was adopted 22 Jan ,1947.
Source of authorities lie in the hand of we the people of india. It declare india as sovering secular socialists democratic republic. And it's objective all to secure justice equality liberty and fraternity. And it is adopted on 26 november, 1949.
Two landmark cases influence the acceptance of preamble. First is baru berubari case , In which court stated that the preamble is key to open the mind of maker, but it can Not considered part of constitution. Therefore it is not enforceable by law.
Second case is kesavananda Bharti, Colt held that the preamble will now be considered as part of constitution.
The constitution is supreme law and it helped to maintain integrity in society to promote unity among citizen and to build a great nation.
Chahat
They are inextricably linked to each other.
Justice differ individually but must be democratic.It's nebulous one and it's greatly influenced by political ,ethical,ideological, cultural and religion. It is desire of every individual . Somebody found earlier than other .As priority can change but justice must be same for all.
According to plato:
"Justice is giving to each person his due".
That means fair,equal,moral and impartial for all .
"Justice in the life and conduct of the state is possible only as first it resides in the hearts and souls of the citizens.
Traditionally:
Justice was moral virtue of character and desirable attribute that political society require to possess.
Providing justice is a moral obligation.
Modern view:
Justice is an imperative and bounded obligation which can not be purchased and sale.
Violation of any right should have enforceable remedy.
Legally justice built into legal rule and their observance is legal justice and law value depend on circumstance .
For example Manipur case
In violation of any right access to justice is of great significance.
It pre -requisite to secure the realisation of right who so ever suffer the violation of his right , must have mechanism which grant him redressal of his wrong.
That mechanism are capable of dispensing justice . Without access , justice is merely an illusion .that access is sin quo non for rule of law and democracy.
Court are guardian of rights and provide legal assistance and also limit executive power for that government is accountable.
Several countries therefore consolidated their efforts to enact laws which would make courts more accessible.
Court would not bt itself provide effective justice. There was need to see that litigrants were in position to approach the court for justice.
Justice in some constitution present as a part of fundamental rights and this enjoys constitutional status .
So, access to justice including right to free legal aid,the recognition of class action and alternative dispute resolution processes.
Some mechanism needed for administrative justice.
With the evolution of the welfare state.
Dispensation is essential function.
Enacted law not only establish right and duties of the citizen but carries state as dispensation of justice through courts which adjucate the right of parties.
To enjoy effective access to justice domestic law must recognize and address the right. And it allow citizen to approach courts or other justice.
International human right law lay down binding standard with respect to access to justice and implemented and practiced in all states under the ambit of international constitutional law and national law.
Universal declaration of human right 1948___
Key component of access to justice required states to put in place competent mechanism that ensure the enforcement of rights of individual by providing them effective remedies. It prescribe legally binding Fair and public hearing by an independent and impartial trail.
International bill of humans:
Universal declaration of right.
International convenant on economic, social and cultural rights.
International convenant on civil and political rights : provide
1) freedom
2)right to remedy by compitent judicial, administration, legislative authorities.
ICCPR- Equality before law with fair and public hearing and trial without delay under legal assistance.
4)convention on elimination of all discrimination.
5) convention against torture and other cruel.
6) inhumane or degrading treatment or punishment .
7) convention on right of child and protection of right of migrant workers.
UN lays down principles for securing justice to victims of crime and abuse of power.
The Aarhus convention (1998)-Access to justice in environmental matters. World Trade Organization (1995) - Dispute Settlement Body or Appellate Body provides solution to members of WTO arising under WTO agreement.
North American Free Trade Agreement provide an investor their claim against the host government.
UN mechanism to promote access to justice is human right council which intergovernmental body responsible for human rights violation and promote assistance and education with reviewing state and also to prevent human right abuse , respond to emergencies.
Under Constitution of India :
Peace and harmony for growth and development to accomplish fair administration of justice which with ensured equality, as preamble mentioned justice by equality of status and opportunity along with social, economic, political justice.
Audi alteram partum ensure every person proper representation before court irrespective of means and knowledge.
Obligation to provide legal assistance under Article 32 and 226 which issue order or writs as habeas corpus, mandamus prohibition, quo-warranto and certiorari. Locus standii means only the aggrieved person can file the case for enforcement of his rights.In India, it fails due to illiteracy, poverty and ignorance.
substantive law operated through a procedure based on rules of evidence that are statutorily determined . In this function of judiciary to protect and ensure the right of individual and punish the wrongdoer.
Kinds of justice:
1) adversarial.
Get truth through prosecution and defense by making most compelling argument.
2)Inquisitorial
Get truth through extensive investigation and examination of all evidence in formal administration.
High Court, Supreme Court, District Court, Civil Court, Criminal Court, tribunals.Javenial justice boards, family courts, children courts are some formal administrations.
Hierarchy of courts:
In Supreme Court, one Chief Justice and 33 other judges which are appointed by President.
High Court:
It work under direct guidance and supervision of Supreme Court. High Court judges appointed by President after consultation with the Chief Justice of India, Governor of State and Chief Justice of State Civil Court:
It is highest to deal with civil matters at district level and District Judge, Civil Judge.Senior Division, Civil Judge, Junior Division and Municipal Court.
Hierarchy of Criminal Court.
It is highest for criminal matter in session court.
Session judge can review decision of First and second class magistrate.
High Court may appoint Additional Session Judge and Assistant Section Judge to exercise Court of Sessions jurisdiction. State government established Court of Session for every session division.
Core Constitution values, help to interpretate the constitution, tell about source of authority.
Purpose: to embodies basic philosophy and fundamental clause on which the Constitution is based.
It proclaimed that India is a sovereign, independent, secular, socialist Republic and democratic nation. Its objective is to secure justice, liberty, equality to all its citizens and promote fraternity to maintain unity and integrity of the nation. Sovereign means a state authority is a supreme over all man and association within the India's territorial boundary.
Socialist shows.Welfare nature of Indian state that glaring disparity income distribution induced the government to control the common commanding heights of economy in the interest of suffering masses. India stand for ending up all form of exploitation as well as for sharing equitable distribution of income, resources and wealth because of democratic socialist nature .
Cases: DS Nakara versus Union of India guarantee weaker section and the Laborers Social Security a nd raising living standard. Excel wear versus Union of India court should give more effect to nationalization and state ownership.
Secularism as.Article 25 to 28 That Constitution guarantee to every person the freedom of conscience and right to profess, practice and propagate religion and not recognize any religion as state religion.
Cases:
S.R. Bommai versus Union of India shows secularism is basic feature of Constitution. Aruna Roy versus Union of India. Secularism has positive meaning that is developing understanding, respect towards different religion.
Some basic features are:
democratic form of government, federal structure, integrity and unity of nation, secularism, socialism.Social justice judicial review.
Democratic means people of India have the actual power to govern the nation through their elected representatives.
Constitution ensure the creation and existence of the government at will of the people.
For example universal adult franchise. same in case of RC Portugal versus Union of India: which shows equal participation of all citizens.
And
Union of India versus Association of Democratic Reform, 2002.
Democracy cannot survive without the fair elections.
Republic:
shows elected head of government directly or indirectly.
Every office in India open to every citizen of India.
Objectives :
Are to solve socio-economic problems so;The doctrine of socio-economic justice, enshrined in part three and four of Constitution, came into existence.
i.e measures have been taken to create more favorable condition for minorities i e SC, ST, OBC.
To abolish untouchability, prohibit exploitation against women, children and weaker section of society reservation to raise the standard of people came into picture.
Therefore, this ideal of a just and egalitarian society remains as one of the foremost objective.
Liberty:
democracy, as unattainable without the presence of certain individual rights for free and civilized existence and freedom of thought, expression, belief, faith and worship.
Equality:
our constitution assure equality of status and opportunity to every citizen which is substantiate democracy and justice.
Fraternity stands for the spirit of common brotherhood, giving meaning to all ideals like justice, liberty, and equality which shows ample stress on fraternity.
Democracy have responsibility to generate this spirit of brotherhood.
Fraternity and dignity are inextricably linked with each other. Our constitution ensure development, quality of life. Without fraternity, unity and integrity of the people and nation seems unattainable. Indian citizen protect the unity and integrity of India.
As a matter of duty, Article( 51-A).
Legal aspects of preamble:
The preamble to enact set out the main objective which legislation is intended to achieve.
Cases:
AK Gopalan versus State of Madras
Shows democratic constitution should be the guiding start in its interpretation.
State of Rajasthan versus Basant Nahata:
In Berubari case,
Preamble is not a part of Constitution .
In Keshavnanda Bharti case:
It limit the power of Article 368 and also defined the basic features and also shows preamble is a part of constitution which is not enforceable.
The case decided on 11 July 1994 with 9 judge bench. Secularism in the list of basic features .
Supreme court explained the basic structure of constitution with issue of exercise of power by central government under Article 356.
Minerva Mills versus Union of India :
Chief Justice of India as Y V ChandraChud decided on 31st July 1980 shows that basic structure of existing constitution cannot robbed, if basic structure is not followed then we trying to making a different and a new constitution.
M Nagaraj versus Union of India( 2006)
In this 77th and 81st Constitutional Amendment Act challenged which provide reservation in the proportion.
Article 16 (4- A )and 16( 4B) came into existence which shows Article 14,19,21 relating with the democracy, social justice and secularism etc. which are beyond amending power of parliament under Article 368 and cannot destroy dignity and freedom of individual.
Basic structure shows by fundamental right which always prevail in front of any other.
I.R. coelha versus state of Tamil Nadu: with a judge bench of nine judges lead the criteria for basic structure principle in which Supreme Court said that power to amend Constitution is not unlimited. Whatever amendment which destroy the basic structure would be void.
Clause 4 and 5 of Article 329 -A shows basic structure is not amendable.