The word jurisdiction is derived by combining two Latin words – “Juris” and “dicere”. Juris means law, and dicere means speak. Hence jurisdiction refers to the power of courts to settle disputes. Jurisdiction is nowhere defined in any legal statute.

10 Types of Jurisdiction

These are the ten main types of jurisdiction of Indian courts:

Let us learn more about all these kinds of jurisdictions.

1. Pecuniary Jurisdiction

The word pecuniary means money. Hence it refers to the power of courts to decide cases that are within monetary limits. In other words, the suit is maintainable in the court if its value does not exceed the monetary limits of the court.

For example, the court of Civil Judge Junior Division has a pecuniary jurisdiction limit of Rs. 50,000. Hence, the said court cannot try suits whose value (value of the property) exceeds Rs. 50,000. Likewise, every court has its pecuniary limits.

2. Territorial Jurisdiction

This jurisdiction refers to the geographical boundary limits of the court to decide cases.

For example, if the suit property is situated in Kolkata, it cannot be tried in Bombay.

3. Subject Matter Jurisdiction

It refers to the power of courts to try cases related to a particular subject. The courts cannot try those cases whose subject is beyond their power of jurisdiction.

For example, suppose Rakesh buys consumer goods, and it is found to be defective. After several requests, the seller refused to replace the item. In this case, Rakesh has to file a suit in the District Consumer Redressal Forum and not in any other court or tribunal. Here the District Consumer Redressal Forum has subject matter jurisdiction over the same to try the case.

4. Exclusive Jurisdiction

This refers to the power of courts to try the cases exclusively referred to it. In any contract or agreement, the mentioning of the jurisdiction of courts takes place, which is then given effect if any dispute arises between the parties.

For example, certain agreements and contracts contain clauses like – Any disputes arising will be subject to the jurisdiction of Puri courts. Hence, in such cases, the suits will be tried at Puri courts.

5. Concurrent Jurisdiction

This refers to the power of two or more courts from different jurisdictions to try the suits referred to it.

For example, certain agreements and contracts contain clauses like – Any disputes arising will be subject to the jurisdiction of Puri courts or courts in New Delhi. Hence, in such cases, the suits can be tried at Puri courts or courts in New Delhi.

6. Appellate Jurisdiction

This jurisdiction refers to the power of courts to decide the appeals of cases that the sub-ordinate courts have already decided.

For example, the High Court of the State has appellate jurisdiction over all the District Courts of the State.

7. Original Jurisdiction

Original jurisdiction refers to the power of courts to take judicial note of any matter in the first instance.

For example, the family court has the power to try cases related to family disputes. Hence, the family court has original jurisdiction over the matter.

8. Special Jurisdiction

This power is given to the courts to try suits of special nature.

For example, if by order of the concerned authority, power is given to fast-track courts to try juvenile cases, it is called special jurisdiction.

9. Legal Jurisdiction

This power is provided to the courts by the statutes, Constitution etc.

For example, the discretionary and inherent power of courts.

10. Extending Jurisdiction

In such cases, the court will interpret and describe the jurisdiction and try the case.

For example, the Parliament of India may by law extend or exclude the jurisdiction of High Courts.

Read Next:
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2. Civil Appeal or First Appeal as Per the Civil Procedure Code
3. What Are the Discretionary Powers of the President of India

10 Types or Kinds of Jurisdiction of Indian Courts
Amit Kumar Das

Section 211 of the Indian Penal Code, 1860 states that:

Whoever intentionally causes injury to any person, institutes or causes to institute any criminal proceeding against the person by making/fabricating false charges knowing that there is no lawful ground or proceeding against the person, shall either be imprisoned for a term up to two years or with fine or both.

If the criminal proceeding is instituted on a false and fabricated charge of an offence of capital punishment or imprisonment for a term of a minimum of seven years, shall be punished with imprisonment for a term of a maximum of seven years and a fine.

Introduction

As society is developing at a swift pace, the demand for stricter laws is rising. Laws are made for the safety of society. Still, some anti-social people are involved in wasting the time of courts by making false allegations, harassing the innocents by filing false litigations, etc. Now there is a trend to register false and fabricated FIRs for taking revenge and generating mental fear in the mind of the innocent. The police are bound to register the FIR in all cognizable cases and follow further procedures.

Nature

Section 211 of IPC is a bailable and a non-cognizable offence and is triable in the court of Judicial Magistrate, First Class.

Examples

Below are some examples of fabricated complaints that are viewed on a daily basis-

1. Matrimonial disputes under section 498A of IPC, Domestic Violence Act, etc., are on the rise in society, where women file false and fabricated complaints against their husbands and their relatives. (Sheo Nath Singh vs Sujata)
2. False complaints by people from SC/ST community under SC/ST Act to harass people from other communities. (Gorigeh Pentaiah vs State of Andhra Pradesh)
3. Love matters where the girl’s family complains against the partner for kidnapping and abduction. (Fazle Gaffar Khan vs State of West Bengal)
4. Civil disputes where the lady members of the complainant file false and fabricated FIR/cases against the opposite party male members.
5. To get undue gains and advantages, different provisions of sexual harassment are followed by women.

What to Do if a False Case or FIR Is Registered Against You?

1. There is no need to panic, especially for those who are victims at first instance.
2. Attend the complaints/cases and try to defend them to the fullest.
3. Apply to session judge or high court for anticipatory bail under section 438 CrPC to apprehend the arrest.
4. File a writ petition under Article 226 before the High Court to quash the FIR mentioning sufficient grounds.
5. The most stringent action the victim can take against the complainant is section 211 IPC. But, firstly, the victim needs to be a judgement creditor (after being discharged from the court) to initiate a case under section 211 of IPC.
6. There are other remedies, including filing a complaint under section 182 IPC, filing the application before the court under section 156(3) CrPC, making a private complaint under section 200 CrPC, etc.

Case Laws – Section 211 IPC

Radhika vs Wilson Sundararaj: The investigating officer can’t be charged for false accusation under section 211 of IPC on the acquittal of the accused.

Rajkumar Indarchand Agarwal and Others vs State of Maharashtra and Others: To attract the provision of section 211 of IPC, the period of limitation would start running from the date of the alleged false complaint and not from dismissal or withdrawal of an alleged false complaint.

Conclusion

Every citizen is guaranteed fundamental, constitutional and legal rights by the state to live in society. Some anti-social people use different Acts and statutes against the innocents to harass and blackmail them for unlawful gains. Registration of fake, false and fabricated cases against the innocent is a curse for him as his reputation is damaged. He is seen as a tainted person in the eyes of society. Everyone must refrain from filing false and malicious cases and not burden our already overburdened judicial system.

Read Next:
1. Classification of Offence as Per CrPC
2. Delay in Civil Litigation – Dangers, Causes, and Suggestions

Malicious Charge of Offence Under Section 211 of the Indian Penal Code
Amit Kumar Das

The Supreme Court of India is the highest judicial body or the apex court of the Republic of India and is situated in the national capital, New Delhi. This article tells you about the history, composition, eligibility of judges, jurisdiction, and powers of the Supreme Court of India.

History of the Supreme Court of India

The Indian High Courts Act of 1861 established High Courts for several provinces and abolished the Supreme Courts in Calcutta, Madras, and Bombay, as well as the Sadar Adalats in presidential cities in their respective districts in 1861.

Until the Federal Court of India was established under the Government of India Act of 1935, these new High Courts enjoyed the distinction of being the highest courts for all cases. The Federal Court held jurisdiction over conflicts between provinces and federal states, as well as hearing appeals from High Court decisions.

HJ Kania was India’s first Chief Justice.

Note: The initial proceedings and inauguration happened on January 28, 1950, at 9:45 AM.

Must See: Pros and Cons of Regional Benches of the Supreme Court of India

Architecture of the Supreme Court of India

Dr Rajendra Prasad, India’s first President, laid the foundation stone for the Supreme Court building on October 29, 1954. Chief architect Ganesh Bhikaji Deolalikar, the first Indian to lead the Central Public Works Department, designed the main block in an Indo-British style.

There is a total of 15 courtrooms, with the Chief Justice’s Court being Court No. 1.

There are three wings, namely,

1. Central Wing consists of the court of the Chief Justice of India and is the largest among the courtrooms, with two court halls on each side.
2. Left Wing consists of offices of the court.
3. Right Wing consists of the Supreme Court Bar, the Office of the Attorney General of India and other officers and the library.

Note: In 1979, East Wing and West Wing were added.

Collegium Members of the Supreme Court

Presently, the members of the collegium are:

• Nuthalapati Venkata Ramana (Chief Justice of India)
• Uday Umesh Lalit (Judge, Supreme Court of India)
• Ajay Manikrao Khanwilkar (Judge, Supreme Court of India)
• Dhananjaya Yeshwant Chandrachud (Judge, Supreme Court of India)
• Lavu Nageswara Rao (Judge, Supreme Court of India)

See the official link for SCI for the latest names.

For More: What Is the Collegium System in India and How It Works?

Composition of the Indian Supreme Court

Supreme Court consists of registry, Chief Justice, and companion judges briefed below.

Registry

The Supreme Court’s registry is led by the Secretary-General, who is aided by ten registrars, several extra and deputy registrars, and others. The Supreme Court registry’s officers and staff are appointed under Article 146 of the Constitution of India.

Chief Justice

There shall be a Chief Justice to the Supreme Court of India. He is selected based on seniority.

Judges

There are a total of 34 judges, including the chief justice. The judges sit in single, division, Constitution and large benches.

Notes:

• The largest bench comprising 13 judges sat in 1973 in the Kesavananda Bharati vs State of Kerala case.
• The first woman judge was M Fatheema Beevi took charge in 1989.

Advocate-On-Record

Only advocates who are registered with the Supreme Court, known as advocates-on-record, are allowed to appear, act, and plead for a party in court under the Supreme Court Rules of 2013.

Appointment of Supreme Court Judges

Under clause (2) of Article 124 of the Constitution, the President appoints the Chief Justice of India and the Supreme Court Judges.

Chief Justice

The appointment of the Chief Justice of India is from the Supreme Court’s senior-most judge, who is deemed qualified to assume the position. The Union Minister of Law, Justice, and Company Affairs will seek the outgoing Chief Justice of India’s recommendation for the appointment of the next Chief Justice of India at the appropriate time. Following receipt of the Chief Justice of India’s proposal, the Union Minister of Law, Justice, and Corporate Affairs will forward it to the Prime Minister, who will advise the President on the appointment.

Judges

When a vacancy in the office of a Supreme Court Judge is expected, the Chief Justice of India will launch a proposal and transmit it to the Union Minister of Law, Justice, and Corporate Affairs to fill the vacancy. The Chief Justice of India’s opinion on the appointment of a Supreme Court Judge should be made in consultation with a collegium of the Supreme Court’s four senior-most puisne judges.

Jurisdiction and Powers of the Supreme Court

Below, you will find the types of jurisdiction dealt with by the Supreme Court and its powers.

Original Jurisdiction

Original jurisdiction is addressed in Article 131 of the Indian Constitution. The functions are wholly federal and may include conflicts between the states and the Union or the Government of India and state governments or two or more states. The Supreme Court’s original jurisdiction is exclusive, which means that such disputes can only be brought before it and no other court.

Appellate Jurisdiction

The Supreme Court is an appellate court. A person might appeal to the Supreme Court against the decision of a lower or High Court.

Appeal by Special Leave

When an issue of law is implicated, the Supreme Court may intervene in a decision made by the High Court or other courts. The Supreme Court has this competency under Article 136 of the Indian Constitution.

Writ Jurisdiction

A person can approach the Supreme Court to issue writs under Article 32 of the Indian Constitution if their fundamental rights have been violated.

Related: Types of Writs Under Constitution of India

Advisory Jurisdiction

In some cases, the President may send the case to the Supreme Court for a ruling or opinion. The President may believe that the subject involves a significant point of law or the public interest, in which case he should seek advice from the Supreme Court. This is defined in Article 143 of the Constitution of India.

Must Read: Advisory Jurisdiction of the Supreme Court

Judicial Review

The Supreme Court has the power to declare a law passed by parliament null and unconstitutional if it violates the Indian Constitution’s principles. Because of its function as a defender and interpreter of the Constitution, the court has assumed this implicit power.

Must See: Judicial Review Explained – Constitution of India

Court of Record

The Supreme Court’s whole meetings are taped and published as case law. All Indian courts are bound by such judgements. Article 129 of the Indian Constitution makes the Supreme Court a court of record.

Read Next:
1. 10 Types or Kinds of Jurisdiction
2. Impact of Pending Cases in Indian Courts
3. 6 Types or Categories of Criminal Courts in India
4. Is the Indian Parliament Supreme or the Judiciary (Supreme Court)?

About Supreme Court of India – Collegium, Powers, Judges
Amit Kumar Das

Judges and public servants should discharge their duties ethically and without any biases. Due to the rise in corruption, there is a provision in the Code of Criminal Procedure under section 197 for the prosecution of judges and public servants.

In this CrPC note, let us analyse the law and focus on the provisions available in the Indian laws to prosecute judges and public servants while holding their office.

Purpose of Protection to Judges and Public Servants

The government provides such facilities to help judges and public servants discharge their duties without any external pressure, bias, or unethical procedures.

Note: The definition of a “public servant” in section 21 of IPC does not apply as per section 2(c) of the Prevention of Corruption Act, 1988.

Prosecution of Judges and Public Servants – Section 197 CrPC

Section 197 of the Code of Criminal Procedure specifies that no court is competent to take cases against public servants and judges in the proceedings against crimes committed except with prior approval from a competent authority.

The offence committed must apply to a past or present judge, magistrate or public official who is not allowed to remove himself from office under government penalties when he fulfils his official duties. It applies to staff employed at the time of the commission of the offences by the central government and the state government.

In addition, no court in India has taken cognizance of the personnel of the Union’s armed forces who have committed the offence.

The state military members may be included in the special treatment clause using a notification to the state government. The state armed forces, which serve a public purpose, may be placed under the similar authority of central officials concerning the section’s provisions with appropriate preservation of public safety as determined by the government.

During the failure of state machinery and installation of Article 356 of the Indian Constitution in the state, any judge or armed force member hired by the state government would act as a central official of the government.

Note: Prior sanction of the competent authority is required under section 19(1) of the Prevention of Corruption Act, 1988; whereas the same is required under section 197(1) of the CrPC for an offence committed while acting or purporting to act in the discharge of his official duty and not for any other reason.

Note: For filing cases against public servants, a prior notice under section 80(1) of CPC of two months has to be given to the public servant by post or be laid on his desk. This section aims to reduce the chance of further litigations. Notice under section 80(1) CPC is mandatory. If there is a need for litigation against the public servant without going for section 80(1) CPC, then leave of the court is mandatory under section 80(2) CPC, else the suit will be dismissed.

Case Laws Related to Section 197 CrPC

Here are some important case laws related to section 197 of the Criminal Procedure Code:

Chandan Basu vs the State of Bihar (2014)

The sanction for the prosecution of public servants under sections 420, 409, 467, 468, and 471 of the Indian Penal Code is not required.

The State of Orissa vs Ganesh Jew (2004)

Section 197 CrPC does not apply if the accused public servant had ceased to be a public servant on the date the court took cognizance of the offences under the Prevention of Corruption Act.

State of Bihar vs PP Sharma (1991)

In this case, it was held that the nature of the sanction order is administrative and not quasi-judicial.

Neera Yadav vs CBI (2017)

It was held that when a sanction under section 19 of the Prevention of Corruption Act, 1988, has already been granted, a sanction under section 197 CrPC is not required.

UP Judicial Officers Association vs UOI (2002)

We direct that no crime for investigation should be registered pursuant to any FIR without the permission of the Chief Justice of the High Court concerned when any criminal conduct is attributed to a judicial officer in the discharge of his duties or in the purported exercise or discharge of his duties.

BSNL vs Pramod Samant (2019)

Despite falling within the purview of the concept of state under Article 12 of the Indian Constitution, officers of Public Sector Undertakings (PSUs) will not be allowed to pursue sanctions under section 197.

Baijnath vs the State of MP (2016)

No penalty for prosecution under section 197(1) of the Criminal Procedure Code shall apply to all offences committed by public servants. If the nature of the offence does not relate to the public servant’s official duties, protection provided under this section is not provided.

Conclusion

Judiciary is an independent pillar of democracy. Public servants and judges should work ethically and without any bias in discharging their duties.

Since corruption is one of the obstructing factors in the country’s development, it needs to be addressed from the grassroots level to the top level.

Rich people taking advantage of their financial capacity try to influence the public servants and judges, which is a significant bottleneck that needs to be arrested for the smooth running of democracy. For this, efforts must be boosted to have a deep and thorough analysis of the existing laws, which is the current demand of the hour.

Read Next:
1. Impact of Pending Cases in Indian Courts
2. Enforcement of Foreign Judgement in India
3. Doctrine of Basic Structure with Landmark Judgements

Prosecution of Judges and Public Servants
Amit Kumar Das

A judicial system entails judges who interpret and apply the law to resolve a dispute and thus administer justice. This procedure takes into account the rules that govern the roles of judges in the courtroom. Fairness and consistency must be ensured when establishing these rules in order to facilitate the application of fundamental justice. Here comes the role of media in the picture.

The legislative, executive, and judiciary are the other three limbs of a democratic system, with the media being the fourth. The freedom of the press is an important component of freedom of expression and a necessary part of a democratic system. The Indian Constitution guarantees this freedom as a Fundamental Right.

Individual rights must be respected by the media, which must also function within the context of legal principles and regulations. These principles/statutes are intended to serve as minimal requirements, not as a substitute for higher levels of protection for freedom of expression.

Media reports the facts and proceedings of a courtroom. It also shares people’s voices about a judgement. Here’s more about the roles and responsibilities of media in the judiciary.

Regulations by the Press Council of India on Media Reporting in Judicial Proceedings

Below are the principles for media persons while dealing with judiciary matters:

When Criticising a Judicial Act, Use Caution

1. A newspaper may report on pending judicial proceedings in a fair, truthful, and reasonable manner unless the court sits “in camera” or directs otherwise. It will not, however, publish anything:

• which has the direct and immediate effect of blocking, hindering, or significantly prejudicing the proper administration of justice; or
• is in the manner of a continuing commentary or debate, or chronicles the paper’s own conclusions, conjectures, reflections, or remarks on matters, which may amount to an abrogation of the court’s responsibilities to the newspaper, and which is sub judice (under judicial consideration and therefore prohibited from public discussion elsewhere); or
• concerning the personal character of the defendant facing an allegation of committing a crime.

2. When the accused is detained and charged, and the court takes control of the case, the newspaper should not reveal, comment on, or assess evidence acquired as a consequence of investigative journalism. Nor should they expose, remark upon, or analyse a confession supposedly made by the defendant.

3. While journalists may make a valid criticism of judicial conduct or a court’s judgement for the public good in the public interest, they may not cast slanderous aspersions (an attack on the reputation or integrity of someone or something) on, infer inappropriate intentions, or personal bias to the judge. They also must not embarrass the court or the judiciary as a whole or make personal accusations of incompetence or lack of credibility against a judge.

4. Even if such criticism does not legally amount to criminal contempt of court, the newspaper should avoid unfair and inappropriate criticism that, by insinuation, attaches to a judge extraneous consideration for doing an act in the course of their judicial powers.

Reporting Proceeding Related News

Before publishing the proceedings of the court, its genuineness should be examined by the reporter and editor from different reliable sources so that the person circulating incorrect information may be held liable.

Effects of Media on Judiciary

There isn’t much room for testing and trial and error when every piece of information transmitted and published by a media outlet has the capacity to influence a judge’s decision.

As a result, any publication that is detrimental in nature and has the potential to influence the thinking of a sitting judge must be obstructed for the sake of the administration of justice.

Journalism on pending cases and criticism of the judiciary’s administration of justice frequently crosses the line into contempt of court.

The frequent scrutiny and updates on a pending case create a hazy environment, putting the case in jeopardy. When asked about the controversial documentary on the Nirbhaya gang rape case, the Delhi High Court stated that “media tries to influence judges by inadvertently exerting a strain.”

Recent Developments Related to Telecast of Court-Room Proceedings

During the COVID pandemic, when the physical hearings were stopped, as an alternative, all the High Courts and the Supreme Court started virtual hearings.

This has struck a remarkable achievement of the live streaming of court proceedings on YouTube. As a result, a common person had access to the video on YouTube, which created further transparency in the judiciary. With this, the parties were able to view their respective cases as to how the same is getting argued in the court by their respective counsels.

Not only this, the law students benefitted a lot, and it has also helped significantly in legal research.

Conclusion

The media exerts great power and can subtly influence a case. A question arises as to whether the media has become the people’s voice or the noise that inadvertently influences the judicial officer presiding over a case that has been publicly tried prior to its completion in court through active journalism.

Read Next:
1. Impact of Pending Cases in Indian Courts
2. Doctrine of Basic Structure With Landmark Judgements
3. What Are Pressure Groups and Their Role in Indian Polity

What Is the Role of Media in Judiciary
Amit Kumar Das

This article defines and explains two different rights – Right in Rem and Right in Personam. The terms “Right in Rem” and “Right in Personam” are derived from the Latin terms “action in rem” and “action in personam,” respectively. Let us understand their meaning below.

Definition of Right

Austin: An individual’s privilege is a prerogative granted by a specific statute and used against another person or persons. (Prerogative means a right or privilege exclusive to a particular individual or class.)

Holland: A legal right is the capacity a person possesses to govern the activities of others with the approval and aid of the state.

Right in Rem or Jus in Rem

Anyone signing a contract possesses rights in Rem or intangible rights. They have this right against the whole globe. Basically, it prevents a person’s stuff from being stolen by anyone in the universe.

As a result, we refer to this type of right as a negative one. For the simple reason that it provides everyone with the right to be alone. This means that no one else has the right to meddle with the right(s) of a person. These are rights residing in individuals and can be availed against the other parties.

Right in Personam or Jus in Personam

Right in Personam is the polar opposite of Right in Rem. Right in Personam confers legal rights on a single person or party to a contract. It usually corresponds to a responsibility placed on the mentioned person or group.

Difference Between Right in Rem and Right in Personam

Rights in Rem: These are real rights.
Rights in Personam: These are personal rights.

Rights in Rem: These rights are available against common/globe.
Rights in Personam: These rights are available against a particular party.

One right is the subject matter of another right.
Rights in Rem: This is the subject matter of right in personam.
Rights in Personam: This is the subject matter of right in rem.
Example: Right of Shyam after he signs a contract with Ram for a piece of land purchase is right in personam. Whereas after execution of sale deed the right will be right in rem available against the whole world.

Rights in Rem: No relationship is established.
Rights in Personam: Relationship is established.

Rights in Rem: These are negative rights.
Rights in Personam: These are positive rights.

Rights in Rem: These are general rights.
Rights in Personam: These are special rights.

Examples of Right in Rem

1. X purchased a car. X has the Right in Rem with respect to the car. No party can disturb the Right in Rem of X.

2. Y gifted a landed (landed means owning much land, especially through inheritance) property to his son Z. Z has Right in Rem with respect to the gifted property.

Examples of Right in Personam

1. A sold his house to B for Rs. 25 lakhs. Hence, A’s right to receive the sale amount from B is A’s personal right and no other party is involved. Hence this is Right in Personam.

2. B rented his farmhouse to C for a monthly rent of Rs. 5000. Hence, B’s right to collect rent from C is his personal right, and no other party is involved. Hence, this is Right in Personam.

Case Laws

R Viswanathan vs Syed Abdul Wajid

A right was recognised by Roman lawyers as either Jus in Rem or Jus in Personam. Jus in Rem is a right in respect of a thing, and Jus in Personam is a right against or in respect of a person, according to its literal meaning. A Right in Rem presupposes a duty to recognise the right imposed on all people in general. In contrast, a Right in Personam presupposes a duty imposed on a specific person or class of persons.

MV Elisabeth vs Harwan Investment

Plaintiff’s established claim is the full amount of the defendant’s liability in personam action. An acknowledgement of service in a real estate auction can also lead to full liability, even when the judgement exceeds the property value or bail provided.

Or, in other words, in an admiralty suit in personam, the defendant is liable for the entire amount of the plaintiff’s substantiated claim. Similarly, even if the amount of the judgement exceeds the value of the res (thing), a defendant recognising service in an action in rem risks being held fully accountable.

What Is Right in Rem and Right in Personam
Amit Kumar Das

Introduction

Judicial activism is a philosophy in the judiciary that actuates (motivates) judges to go beyond statutory precedents and adopt a progressive method in deciding cases. The term originated in the United States by Arthur Schlesinger in 1947. In recent days, it is seen in view that a judge favours judicial activism when he sets aside his earlier judgment.

The Legislature, Executive and Judiciary are the three organs in our country. According to the doctrine of separation of powers, which is based on the principle of trias politica, all three organs should exercise their powers independently. In other words, no organ should interfere with the decisions of other organs.

Note: The said doctrine is not fully accepted in India as held in Ram Jawaya vs Punjab State. In some instances, the judiciary has to go beyond the doctrine of separation of powers, which is termed as ‘judicial activism‘.

Indian Precedent of Judicial Activism

With respect to the doctrine of separation of powers, the Indian Constitution has the following provisions-

1. Article 121 and Article 211 prohibit any Legislature in its functions from talking about the conduct of any judge.
2. Article 122 and Article 212 impede the judiciary from judging the legislature’s proceedings.
3. In terms of freedom of speech and voting, Article 105(2) and Article 194(2) protect legislators from judiciary interference.

Our Constitution favours judicial activism to some extent in Articles 13, 32 and 226, which provides power to the higher judiciary to declare the executive’s statutory orders as void.

Examples of Judicial Activism

The first case of judicial activism started in 1979 when the Hon’ble High Court of Judicature Allahabad declined the electioneering of Ms Indira Gandhi. Other landmark cases include the Keshavananda Bharti case, Golakhnath vs Punjab State, Hussainara Khatoon vs Bihar State etc.

Some recent case laws on judicial activism are:

1. Rajesh Sharma vs State of UP (2017): Here, the court became fed up with the misuse of section 498A IPC and directed that the complaints be forwarded to the Family Welfare Committee constituted under respective DLSAs (District Legal Services Authority) as there is no such provision mentioned in the code.
2. MC Mehta vs UOI (2018): When the Hon’ble apex court ordered the sale of BS-6 vehicles and banned the sale of BS-4 vehicles after 30th March 2020, it invalidated the statutory rule of section 115(21) of Central Motor Vehicle Rules. Here the court exercised power vested under Article 142 of the Constitution.
3. The Hon’ble Supreme Court on 29th October 2018 passed a judgement banning 15-year-old petrol vehicles and 10-year-old diesel vehicles from plying in the National Capital.

What Propels Judges to Become Judicial Activists?

Society is moving at a breakneck pace. Our laws are outdated when compared to the updated demands of society. When the legislative machinery fails to update the laws at the desired speed, and government machinery fails to discharge its functions, to uphold the values of democracy, the judiciary has to step in to fill the gaps reserved for the other two organs of the country.

Another reason is to uphold the faith of the people in the judiciary. Finally, when there is a clash between statutory laws and fundamental rights, the judiciary has to step in to protect the fundamental rights of the citizens.

Advantages of Judicial Activism

1. It creates an equilibrium in different government departments.
2. It enhances people’s faith in the judiciary
3. Where the law fails to meet the expectations, judicial activism comes into play.
4. Judicial activism helps judicial mechanisms to prevent haste misuse of power by the state machinery.
5. Aids in speedy justice.

Disadvantages Judicial Activism

1. The judgements delivered via judicial activism mode set a basic rule for other judgements.
2. Recurring review of judgements can result in a loss of faith in the judiciary.
3. State and Central machinery functioning become limited with judicial activism.
4. Statutory and legislative laws are violated.
5. Decisions or orders can be influenced for personal gains.

Opinion and Importance

Legal experts cite judicial activism as more democratic. Our country is a democratic country. Law is for society. When a situation arises such that judicial activism is not followed, the judicial system becomes a mere looker, and the purpose of law will not get solved. Hence, judicial activism with discipline must be followed to save society from getting prejudiced and create a perfect balance. If discipline is not maintained and the judges keep on making laws, our democracy will be crippled.

Read Next: Judicial Review in Electoral Matters in India

What Is Judicial Activism – With Case Laws, Pros and Cons
Amit Kumar Das

There is a provision in the Code of Criminal Procedure under section 133 to remove the nuisance. The author analyses the law and focuses on the certain facilities available to the complainant for the removal of the nuisance.

First, what is a nuisance under CrPC? Nuisance is someone or something that irritates, causes inconveniences or makes life more difficult.

Types of Nuisance in CrPC

There are two types of nuisance under the Criminal Procedure Code. They are Public Nuisance and Private Nuisance.

Public Nuisance vs Private Nuisance

Under section 268 of the IPC, public nuisance has been defined. It is an offence against the public, either by doing anything that expresses frustration or by refusing or omitting to do anything necessary for the common benefit. It’s an act or omission that causes the public or persons generally who reside or occupy a common area to be harmed or upset.

On the other hand, private nuisance annoys or impacts a few people compared to the general public.

Section 133 CrPC Explained

Section 133 CrPC establishes a rudimentary method for the disposal of public nuisances in emergencies. According to this provision, anytime a District Magistrate, a Sub-Divisional Magistrate, or any other Executive Magistrate specially empowered in this regard by the State Government receives a police officer’s report or other information and takes such evidence (if any) as he deems appropriate:

A. That any unlawful impediment or nuisance be removed from any public area, including any road, river, or channel that is or may be utilised legitimately by the public.

B. That the conduct of any trade or occupation, or the keeping of any goods or merchandise, is harmful to the community’s health or physical comfort, and that, as a result, such trade or occupation, or such goods or merchandise, should be outlawed or restricted, or their keeping regulated.

C. That the construction of any structure, or the disposal of any substance, that is likely to cause configuration or explosion be avoided or stopped.

D. That any building, tent, structure or any of the trees is subject to such an extent that the building, tent or structure, or support, or removal or support of such a tree is likely to be lost, causing injury to individuals residing or carrying on business in or outside the neighbourhood and as such.

E. That any tank, well, or excavation near any such way or public area is fenced in such a way as to prevent public risk.

F. Any harmful animal should be killed, confined, or otherwise dealt with.

Such Magistrate shall, within a period to be determined by order, make a conditional order requiring the person who causes such obstruction or nuisance; or who carries on or holds such good or goods; or holds, possesses or controls such buildings, tents, structures, substances, tanks, wells or excavations; or possesses or owns such animals and tree:

I. To remove, desist (stop doing/discontinue), prevent, remove, repair, fence, destroy such public nuisance or obstruction or animal as the case may be.

II. Or, if the accused person objects to appear before the Magistrate or any Executive Magistrate subordinate to him at a time and place fixed by the order, and show cause why the order should not be made absolute, in the manner hereunder provided.

Note: No order made by a Magistrate in accordance with this section may be challenged in a civil court.

Punishment Under Section 133 CrPC

The punishment for the conduct of offences concerning public nuisance is provided under sections 268 to 294A of the Indian Penal Code.

In cases that are not provided under section 290 of the Indian Penal Code, public nuisance is punishable. These are fined offences that can extend up to Rs. 200. The remedy in the case of private nuisance is a civil suit.

Section 133 CrPC Case Laws

Here are some of the important case laws and judgments on section 133 CrPC.

1. Ajeet Mehta vs the State of Rajasthan

Fodder was determined to constitute contamination of the atmosphere and, thus, a public nuisance on a particular plot in a residential colony. The order to remove this nuisance was held valid, and the respondents were told to perform no food business on the land.

2. Corbet vs Sonaula

Parking buses on private lands, obstructing the private route, a private road, and Khatal constructed on private property near a public road which creates disadvantages and effects on sanitation, are not covered by section 133 CrPC. (Because these are private properties)

3. Nagarjuna Paper Mills vs SDM & Ors

It was noticed by the High Court of Andhra Pradesh that the power to close a factory creating pollution had been removed by the Water Act, 1974, from the power of the Sub-Divisional Magistrate.

4. Ram Avatar vs the State of UP

Auction of the vegetables in the town’s private house and the parking of vegetable carts on the public roads outside the building must necessarily cause some discomfort to the public and also to the people in the town. But it doesn’t justify action under section 133 of CrPC.

5. Nurjan, 1900 PR2

Prostitutes who continue their business in order and silence can’t be interfered with until they become an annoyance by asking passers-by.

Section 133 CrPC Sample Petition Format

IN THE COURT OF ______________ AT _______
Misc. Case No. ____of______

ABC …Petitioner
Versus
XYZ …Opp. Party

Petition format u/s 133 CrPC for removal of the nuisance.

Most respectfully showeth:

1. (Mention facts here.)

PRAYER

It is hereby prayed that this Hon’ble Court may be pleased to allow this petition and pass such necessary/essential order(s) as this Hon’ble Court may deem fit in the circumstances mentioned above.

Place:              Submitted by
Date:               Petitioner

AFFIDAVIT

I, ABC, aged about ___ years, S/o_________, do hereby solemnly affirm and state as follows:

1. That, I am the deponent as well as petitioner in this case.
2. That, the facts stated above are all true to the best of my knowledge and belief.

Counsel for the petitioner.                                Deponent
Signed/-

Here is the above information in this sample image.

What Is Section 133 CrPC? Explained With Punishment and Case Laws
Amit Kumar Das

The sudden striking of the Coronavirus pandemic has created immense demand for virtual hearings of the court, starting from the lowest court to the apex court. This has become a trend nowadays because of its time-saving feature and fast-tracking of cases.

The viewing/live streaming of the court proceedings is restricted to lawyers and clients only instead of the public. Since both the central and state governments are bringing transparency in their departments, how can the Indian judiciary be subtracted from it by retaining public confidence within the same? There are certain advantages and disadvantages, which are outlined below.

Note: In a first, Gujarat High Court has started live streaming of court proceedings on YouTube.

Background

1. All the courts started operating in virtual mode throughout the pandemic.
2. In model video conferencing rules of the Supreme Court, public viewing of court proceedings through video conferencing has been stated.
3. The apex court had favoured the live streaming of court proceedings in the recent case outlined below.
4. Live Streaming of court proceedings through video conferencing mode is a part of the right to access justice as stated by the apex court.

Objective of Live Streaming of Court Proceedings

The main objectives of live streaming the Supreme Court, High Court, and other court’s live proceedings for general people are as follows:

1. To boost the faith of the people in the judiciary.
2. To activate the right to access justice which remained dormant partially since independence.
3. The demand for a smart judiciary over time.
4. To reduce cost.
5. To reduce corruption.
6. To arrest the irregularities in the judiciary.
7. To aid legal research.
8. To help law aspirants gain knowledge.

Swapnil Tripathy Case Law

Swapnil Tripathy vs Supreme Court 2018: The apex court opined:

“sunlight is the best disinfectant. Live-streaming as an extension of the principle of open courts will ensure that the interface between a court hearing with virtual reality will result in the dissemination of information in the widest possible sense, imparting transparency and accountability to the judicial process”. [Para 18(h)]

The apex court had also said that “live streaming of court proceedings is a part of the right to access justice under Article 21 of the Constitution“. But still, the judgement is unimplemented.

Advantages of Live Streaming of Court Proceedings

Live streaming of court proceedings has several advantages. They are:

1. Litigants can view their lawyer’s presentation and access the same.
2. Without coming to court from far-flung areas, litigants can view live proceedings in the comfort of their place.
3. Live streaming of court proceedings will bring transparency to the judiciary.
4. Fewer Interruptions, raised voices, adjournments etc., by the lawyers can be avoided.
5. Live streaming of court proceedings will be of academic help.
6. Live streaming of court proceedings will also help in legal research.
7. Impugned orders and judgements can be avoided.
8. Cost-effective.

Disadvantages of Live Streaming of Court Proceedings

Live streaming of Indian court proceedings has its share of drawbacks. Some of the main disadvantages are:

1. High data security and privacy are needed.
2. Some cases, such as rape, matrimonial cases, etc., cannot be live-streamed.
3. Infrastructure and high-speed internet connectivity are needed.
4. The court cannot rely upon third-party software and services for safety.
5. Litigants and counsels from rural areas face the digital divide in a developing country like India.
6. Control of unauthorised reproduction of the proceedings by the cyber-criminals will be challenging on the part of the Government.

Way Forward

• Court proceedings’ live streaming is a part of the right to access justice.
• Transparency reimburses the faith of the public in the judiciary.
• Time limits must be specified for oral arguments. Preference shall be given to written briefs.
• There must be a time delay of approximately 10 minutes for the time to edit.
• Important cases such as rape, matrimonial disputes, and cases of national importance must not be telecast.

Read Next:
1. Role of AI in Legal Education and Legal Profession
2. What Are E-Contracts as Per the Indian IT Act?
3. Top 6 Major Flaws in the Current Indian Judicial System

Live Streaming of Court Proceedings in India
Amit Kumar Das

When a person is arrested for any reason, he is taken into custody for questioning and further investigations.

What does an arrest mean? An arrest is nothing but restricting a person’s liberty. Secondly, custody in the general sense is care and protection but here, the meaning of custody changes from care and protection to detention since it is preceded by arrest.

Custody is of two types – Police Custody and Judicial Custody. In this law note, let us learn the meaning of both.

What Is Police Custody

After the commission of a crime, when the police officer arrests the person involved to prevent further crime and proceed with the investigation, they bring the person to the police station. This is called police custody.

It is the detention of a suspect in the custody of the police in the police lock-up at the police station. The police officer in charge of the case may examine the suspect during this detention, which should not last more than 24 hours.

Within 24 hours, the person arrested is to be produced before the magistrate. In this case, custody refers to police lock-up. According to section 167 of CrPC, a person may be held in police custody for 15 days on the magistrate’s orders.

Related: What if the investigation cannot be completed in 24 hours? You can learn about it here – Section 167 CrPC Explained.

What Is Judicial Custody

Law students and normal people often look for the meaning of judicial custody. Let me briefly tell you what this is.

In general, judicial custody is the custody of the magistrate. When the accused surrenders before the magistrate, the magistrate will either release the accused on bail or keep him in judicial custody or send him back to police custody.

In the case of judicial custody, custody refers to jail. Jail can be Central Jail or State Jail. Judicial custody may extend to 90 days for serious or grievous crimes with capital punishment such as death, imprisonment for life etc. and 60 days for the rest of the crimes.

Note: If a person is lodged in police custody, the number of days of his stay during lock-up is subtracted from judicial custody.

Case Laws for Police Custody and Judicial Custody

Case Law 1: CBI vs Anupam Kulkarni

Under sub-clause 2 of section 167 CrPC, the magistrate might order the accused to be held in whatever custody he sees fit, but not for more than fifteen days in total. As a result, the initial custody period should not exceed fifteen days. As the magistrate deems fit, the custody can be either police or judicial.

Case Law 2: CBI vs Rathin Dandapath

Even after a charge sheet has been filed, a police remand might be requested in the case of an arrested suspect.

Case Law 3: Alim Patel vs the State of Maharashtra

If the accused is not imprisoned for the entire first 15 days, he can be kept in police custody even after the first 15 days have passed.

Case Law 4: Kosanappu Ramreddy vs the State of AP

If the circumstances warrant, the person can be remanded to judicial custody or police custody within the time period of 15 days set by sub-clause 2 of section 167 CrPC.

Case Law 5: Gian Singh vs the State of Delhi

Interrogation by police while the accused is in judicial custody, is permissible, but the magistrate has the authority to direct the location and mode of interrogation. Mere interrogation by police will not alter the nature of custody.

Case Law 6: Mithabhai Patel vs the State of Gujarat

Unless bail is cancelled, the accused cannot be sent to police custody.

Case Law 7: Ahmad Basheer vs SI of Police

If the nature of the offence is changed, police can arrest the accused without having to ask for the order of bail to be revoked.

Case Law 8: The State of UP vs Ram Sagar Yadav

The magistrate should issue a remand based on the right application of mind, not on a mechanical basis.

Case Analysis of P Chidambaram

Why did P Chidambaram prefer police custody (Enforcement Directorate) over judicial custody?

He preferred police custody over judicial custody because of the following reasons:

• To avoid the disgrace of being imprisoned with other inmates, where he will be denied access to the luxury and comfort provided in police custody.
• He wanted to reduce the time to be spent in Tihar Jail.
• If he were placed in judicial custody, he was at risk of being detained by the ED again, causing the terrible process to repeat itself.

Legal Remedy if Detention Is Illegal

The person’s relative can approach the High Court under Article 226 or the Supreme Court under Article 32 of the Indian Constitution. It may be noted that the same has no legal remedy if the accused is under legal custody.

Conclusion

Influential accused persons, politicians etc., enjoy immunity from intensified interrogative tactics. Due to the high-level rise in corruption, police are biased towards resourceful persons, whereas the innocents are getting tortured. Only the judiciary can rescue such innocents by applying the judicial brain and verifying the backgrounds of victims and accused. Only then the innocents can be saved from getting converted to hardened criminals from good samaritans.

Read Next: What Is Custodial Violence, Its Types, and Protection Against It in India

What Is Judicial Custody and Police Custody Under CrPC?
Amit Kumar Das