Subordinate Courts – Polity Notes – For W.B.C.S. Examination.

অধস্তন আদালত – পলিসি নোট – WBCS পরীক্ষা।

Qualification for district judge:

1. He should have been an advocate or pleader for 7 years.Continue Reading Subordinate Courts – Polity Notes – For W.B.C.S. Examination.
2. He should be recommended by high court.
3. He shouldn’t already be in service of centre or state.

      The appointment, posting, promotion is made by Governor after consultation with High court. Other appointments of judicial service are made by Governor after consulting high court and state public service commission. Appointments of judicial service below district judge are made by high court.

      District judge (Civil cases) / Sessions judge (Criminal cases) has highest judicial position in district. He has original and appellate jurisdiction over civil and criminal cases.

DISTRIBUTION OF LEGISLATIVE AND EXECUTIVE POWERS

• • Though there is a strong admixture of unitary bias and the exceptions from the traditional federal scheme are many, the Constitution introduces a federal system as the basic structure of government of the country.

• • The Union is composed of 28 States’ and both the Union and the States derive their authority from the Constitution which divides all powers,-legtslative, executive and financial, as between them.

• • The judicial powers as already pointed out, are, not divided and there is a common judiciary for the Union and the States.

• • The result is that the States are not delegates of the Union and that, though there are agencies and devices for Union control over the States in many matters subject to such exceptions.

• • The States are autonomous within their own spheres as allotted by the Constitution and both the Union and the States are equally subject to the limitations imposed by the Constitution

• • For instance, the exercise of legislative powers being limited by Fundamental Rights.

• • Thus. neither the Union Legislature (parliament) nor a State Legislature can be said to be ‘sovereign’ in the legalistic sense

• • Each being limited by the provisions of the Constitution effecting the distribution of legislative powers as between them, apart from the Fundamental Rights and other specific provisions restraining their powers in certain matters, e.g., Art. 276(2) [limiting the power of a State Legislature to impose a tax on professions];

• • Art. 303 [limiting the powers of both Parliament and a State Legislature with regard to legislation relating to trade and commerce). If any of these constitutional limilations is violated, the law of the Legislature concerned is liable to be declared invalid by the Courts.

Scheme of distribution of legislative powers

• • A federal system postulates a distribution of powers between the federation and the states

• • Though the nature of distribution varies according to the local and political background in the country.

• • The distribution proceeds on two lines (a) The territory over which the Federation and the Units shall, respectively, have their jurisdiction.

• • (b) The subjects to which their respective jurisdiction shall extend.

Distribution of legislative powers in our Constitution

• • As regards the territory with respect to which the Legislature may legislate, the State Legislature naturally suffers from a limitation to which Parliament is not subject, namely, that the territory of the Union being divided amongst the States, the Legislation jurisdiction of each State must be confined to its own territory.

• • When, therefore, a State Legislature makes a law relating to a subject within its competence, it must be read as referring to persons or objects situated within the territory of the State concerned.

• • A State Legislature can make laws for the whole or any part of the State to which it belongs

• • It is not possible for a State Legislature to enlarge its territorial jurisdiction under any circumstances except when the boundaries of the State itself are widened by an Act of Parliament.

• • Parliament has, on the other hand. the power to legislate for ‘the whole or any part of the territory of India’, which includes not only the States but also the Union Territories or any other area, for the time being included in the territory of India

• • It also possesses the power of ‘extra territorial legislation’ , which no State Legislature possesses.

• • This means that laws made by Parliament will govern not only persons and property within the territory of India but also Indian subjects resident and their property situated anywhere in the world.

• • No such power to affect persons or property outside the borders of its own State can be claimed by a State Legislature In India.

Limitation to the territorial jurisdiction of parliament

• • The plenary territorial jurisdiction of Parliament Is, however. subject to some special provisions of the Parliament.

• • (i) As regards some of the Union Territories, such as the Andaman and Laksadweep group of Islands, Regulations may be made by the President to have the same force as Acts of Parliament and such Regulations may repeal or amend a law made by Parliament in relation to such Territory

• • (ii) The application of Acts of Parliament to any Scheduled Area be barred or modified by notifications made by the Governor

• • (iii) Besides, the Governor of Assam may, by public notification, direct that any other Act of Parliament shall not apply to an autonomous district or an autonomous region In the State of Assam or shall apply to such district or region or part thereof subject to such exceptions or modifications as he may specify in the notification

• • A Similar power has been vested in the President as regards the autonomous district or region in Meghalaya, Tripura and Mizoram by Paras 12A, 12AA and 12B of the 6th Schedule.

• • It is obvious that the foregoing special provisions have been inserted in view of the backwardness of the specified areas to which the indiscriminate application of the general laws might cause hardship or other injurious consequences.

• • As regards the subjects of legislation, the Constitution adopts from the Government of India Act, 1935, a threefold distribution of legislative powers between the Union and the States

• • While in the United States and Australia, there is only a single enumeration of powers, only the powers of the Federal Legislature being enumerated,-in Canada there is a double enumeration, and the Government of India Act, 1935, introduced a scheme of threefold enumeration, namely. Federal, Provincial and Concurrent

• • The Constitution adopts this scheme from the Act of 1935 by enumerating possible subjects of legislation under three Legislative Lists

• • List 1 or the Union List includes (in 2008) 100 subjects over which the Union shall have exclusive power of legislation. These include defence, foreign affairs, banking, insurance, currency and coinage. Union duties and taxes.

• • List II or the State list comprises 61 items or entries over which the State Legislature shall have exclusive power of legislation, such as public order and police, local government, public health and sanitation, agriculture, forests, fisheries. State taxes and duties.

• • List III gives concurrent powers to the Union and the State Legislatures over 52 items. such as Criminal law and procedure, Civil procedure, marriage, contracts, torts, trusts, welfare of labour, economic and social planning and education.

• • In case of overlapping of a matter as between the three Lists, predominance has been given to the Union Legislature, as under the Government of India Act, 1935.

• • Thus, the power of the State Legislature to legislare with respect to matters enumerated in the State List has been made subject to the power of Parliament to legislate in respect of matters enumerated In the Union and Concurrent Lists, and the entries in the State List have to be interpreted accordingly.

• • In the concurrent sphere, in case of repugnancy between a Union and a State law relating to the same subject, the former prevails.

• • If, however, the State law was reserved for the assent of the President and has received such assent, the State law may prevail notwithstanding such repugnancy

• • But It would still be competent for Parliament to override such State law by subsequent legislation

Residuary Powers

• • The vesting of residual power under the Constitution follows the Residuary Powers precedent of Canada, for, it is given to the Union instead of the States (as in the U.S.A. and Australia).

• • In this respect, the Constitution differs from the Government of India Act, 1935, for under that Act, the residual powers were vested neither in the Federal nor In the State Legislature.

• • But were placed in the hands of the Governor-General; the Constitution vests the residuary power, i.e., the power to legislate with respect to any matter not enumerated In anyone of the three lists

• • In the Union legislature and the final determination as to whether a particular matter Calls under the residuary power or not Is that of the Courts.

• • It should be noted, however, that since the three Lists attempt at an exhaustive enumeration of all possible subjects of legislation, and the Courts interpret the ambit of the enumerated powers liberally, the scope for the application of the residuary power will be very narrow.

Interpretation of the legislative lists

• • The interpretation of over 200 Entries in the three Legislative Lists is no easy task for the Courts and the Courts have to apply the Legislative various judicial principles to reconcile the different Lists.

• • Entries, a discussion of which would be beyond the scope of the present work Suffice it to say that –

• • (a) Each Entry is given the widest form that its words are capable of, without rendering another Entry

• • (b) In order to determine whether a particular enactment falls under one Entry or the other, it is the ‘pith and substance’ of such enactment and not Its legislative label that is taken account of.

• • If the enactment substantially falls under an Entry over which the Legislature has jurisdiction, an incidental encroachment upon another Entry over which it had no competence will not invalidate the law.

• • (c) On the other hand, where a Legislature has no power to legislate with respect to a matter, the Courts will not permit such Legislature to transgress its own powers or to encroach upon those of another Legislature by resorting to any device or ‘colourable legislation.’

• (d) The motives of the Legislature are, otherwise, irrelevant for determining whether it has transgressed the constitutional limits of its legislative power.

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