ASSIGNMENT OF BUSINESS LAW

SUBMITTED TO:Krishna Shetty Sir

SUBMITTED FROM:-

Name:- Priti .H. SINGH Roll no:-01003 Stream:-Retail Management Class:-4C

India possesses an integrated and unified judiciary for the whole country. The judiciary system which is followed in India is formed on the basis of the British Legal System. The system was prevalent in the country during preindependence era. Very few amendments have been made in the judicial system of India. Part V, Chapter IV of the Constitution of India deals with the Indian judicial system. The Indian Judiciary is organised pyramidally. At the bottom there are numerous India possesses an integrated and unified judiciary for the whole country. The judiciary system Nyaya panchayats and at the apex there is the Supreme Court. In between the two there are district courts and the High Courts. The Indian courts of adjudication are divided into two groups - Civil courts and Criminal Courts. The courts that deal in general disputes regarding land, property and other such things are called Civil Courts. Criminal Courts are those that deal with murder, riot as well as looting. The Supreme Court, the High Courts and the lower Courts constitute a single Judiciary. Broadly there is a three - tier division. In the Indian Judiciary, the Supreme Court is the Apex court in the country. According to the Constitution of India, the role of the Supreme Court of India is that of a centralized court, protector of the Constitution and the highest court of appeal. The High Court stands at the head of the state`s judicial administration. Each state is divided into judicial districts, which is controlled over by a district, and session`s judge, who is the highest judicial power in a district. Below him, there are courts of civil jurisdiction, known in different states as munsifs, sub-judges, civil judges etc. Similarly, criminal judiciary comprises chief judicial magistrate and judicial magistrates of first and second class. The High Courts are the principal courts of original jurisdiction in the state, and can try all offences including those punishable with death.

The Indian judiciary is famous for being independent and non-partisan. Liberty and equality are the corner stones of a democracy and the preservation of these two conditions is indispensable to the development and is an essential function of a democratic government. The judiciary in India has two fold functions, the preservation of the constitutional and legal rights of all citizens against all encroachments whether by government or by other individuals. The judiciary is to apply law equally to all irrespective of status, wealth, religion and sex. Thus judiciary as an organ of the government presents striking difference from the legislature and the executive. This is why the judiciary should be neutral in politics. The protection of individual liberty by just and impartial trial is therefore regarded as a sacred duty of the judiciary. Thus, it is necessary to keep the judiciary independent of the control of the Executive and Legislature. The separation of the Judiciary from the Executive and the Legislature is a pre- condition for promoting the ends of justice for which the judiciary stands. The independence of the judiciary depends largely on the way in which the judges are appointed. In India Judges of the Supreme Court and High Courts are appointed by the Executive. The appointing authority is the President of India, who acts on the advice of the Council of Ministers. But the President is required to consult the Chief Justice of Supreme Court at the time of making such appointments. This principle of nominating of the judges by the Executive from among the legal experts and practitioners is more acceptable than the other systems. The executive nomination of the judges is done with adequate safeguard. This guarantee independence and impartiality of the Judges. Part IV of the Indian Constitution deals with the topic of Separation of judiciary from executive. It is stated that `The State shall take steps to separate the judiciary from the executive in the public services of the State.` The independence of the judiciary is guaranteed by the Constitution of India which enacts that every Judge of the Supreme Court will hold office until he attains the age of 65 years and that every Judge of the High Court until the age of 62 years. The Parliament is authorized to prescribe the privileges, allowance, leave and pension of the Judges of the Supreme Court, subject to the safeguard that these cannot be varied during the course of tenure of the judges to their disadvantages. According to the independence of the Indian Judiciary, before removing any judge from his office, there must be a clear probe into the allegations against him and there must be a proper impeachment by the competent authorities following the method embodied in the Constitution of India. Indian Constitution has upheld this provision by laying down that a judge shall not be removed by the President, except on a

joint address by both the House of the Parliament on ground of proved misbehavior or incapacity. The Constitution of India insulates the Supreme Court and the High Courts from political criticism, and thus ensures their independence from political pressures and influence, by laying down that neither in Parliament nor in a State Legislature the conduct of a Supreme Court or the High Court Judge in the discharge of his duties can be discussed. The independence of judiciary is further protected by treating the superior courts as the `court of record`. The members of the subordinate judiciary are also protected by the provisions of the Judicial Protection Act. In Indian Judiciary system, the Attorney General is the chief legal advisor of the Indian government and its primary lawyer in the Supreme Court of India. He must be a person qualified to be appointed as a Judge of the Supreme Court. The Attorney General for India is appointed by the President of India under Article 76(1) of the Constitution of India and holds office during the pleasure of the President. The Attorney General is responsible for giving advice to the Government of India upon such legal matters and to perform such other duties of legal character as may be referred or assigned to him by the President. Furthermore, the Attorney General has the right of being present in all Courts in India as well as the right to participate in the proceedings of the Parliament. He appears on behalf of Government of India in all cases in the Supreme Court in which Government of India is concerned. He also represents the Government of India in any reference made by the President to the Supreme Court under Article 143 of the Constitution. The Attorney General can accept briefs but cannot appear against the Government. He cannot defend an accused in the criminal proceedings and accept the directorship of a company without the permission of the Government. The Attorney General is assisted by a Solicitor General and four Additional Solicitors General. The Attorney General is to be consulted only in legal matters of real importance and only after the Ministry of Law has been consulted. An Advocate General in India is a senior law officer of a country who is usually charged with advising the courts or Government on legal matters. According to Article 165 of the constitution of India, the post of Advocate General is appointed. The Advocate General of a State is a Constitutional post and authority. The authority and function of the Advocate General is also specified in the Constitution of India under Article 165 and 177. Article 165 States

 The Governor of each State shall appoint a person who is qualified to be appointed a Judge of a High Court to be Advocate-General for the State. It shall be the duty of the Advocate-General to give advice to the Government of the State upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the Governor, and to discharge the functions conferred on him by or under this Constitution or any other law for the time being in force. The Advocate-General shall hold office during the pleasure of the Governor, and shall receive such remuneration as the Governor may determine. Article 177 says Every Minister and the Advocate-General for a State shall have the right to speak in, and otherwise take part in the proceedings of, the Legislative Assembly of the State, or, in the case of a State having a Legislative Council, Both Houses, and to speak in, and otherwise to take part in the proceedings of, any committee of the Legislature of which he may be named a member but shall not, by virtue of this Article, be entitled to vote. Judiciary is a part of the democratic process. Judiciary not only administers justice, it is the protector of the rights of the citizens and it acts as the interpreter and guardian of the constitution. Judiciary is thus an important pillar of Democracy. (Last Updated on : 8/08/2009)

The Supreme Court in India is the ultimate interpreter of the constitution and the laws of the land. It has appellate jurisdiction over all civil and criminal proceedings involving substantial issues concerning the interpretation of the constitution. The court has the original and exclusive jurisdiction to resolve disputes between the central government and one or more states and union territories as well as between different states and union territories. And the Supreme Court is also empowered to issue advisory rulings on issues referred to it by the president. The Supreme Court has wide discretionary powers to hear special appeals on any matter from any court except those of the armed services. It also functions as a court of record and supervises every high court.

Twenty-five associate justices and one chief justice serve on the Supreme Court. The president appoints the chief justice. Associate justices are also appointed by the president after consultation with the chief justice and, if the president deems necessary, with other associate justices of the Supreme Court and high court judges in the states. The appointments do not require Parliament's concurrence. Justices may not be removed from office until they reach mandatory retirement at age sixty-five unless each house of Parliament passes, by a vote of two-thirds of the members in attendance and a majority of its total membership, a presidential order charging "proved misbehavior or incapacity." The contradiction between the principles of parliamentary sovereignty and judicial review that is embedded in India's constitution has been a source of major controversy over the years. After the courts overturned state laws redistributing land from zamindar (see Glossary) estates on the grounds that the laws violated the zamindars' Fundamental Rights, Parliament passed the first (1951), fourth (1955), and seventeenth amendments (1964) to protect its authority to implement land redistribution. The Supreme Court countered these amendments in 1967 when it ruled in the Golaknath v State of Punjab case that Parliament did not have the power to abrogate the Fundamental Rights, including the provisions on private property. On February 1, 1970, the Supreme Court invalidated the government-sponsored Bank Nationalization Bill that had been passed by Parliament in August 1969. The Supreme Court also rejected as unconstitutional a presidential order of September 7, 1970, that abolished the titles, privileges, and privy purses of the former rulers of India's old princely states.

Case study: Anand Kumar v State of M.P.- Date of Judgment: 20/2/2009 Case No.: Criminal Appeal No. 337 of 2009 - Bench: Dalveer Bhandari & Harjit Singh Bedi. Judgment: Arising Out Of Special Leave Petition (Crl) No. 2857/2008 Arijit Pasayat, J.- Leave granted This appeal has been filed by the accused who stands convicted for offences punishable under Section 306 of Indian Penal Code and Section 4 of the Dowry Prohibition Act 1961 and sentenced to imprisonment for 5 years and 6

months R.I. 2 respectively - both sentences to run concurrently. The facts are as under: 3. Karuna, deceased and the appellant Anand Kumar were married in the year 1981 while she was yet a child. The gauna of the deceased, however, took place on 13th May 1986 and a month thereafter she visited her parents home to attend a family wedding and on 18th June 1986, returned to her matrimonial home accompanied by her brother-in-law. She, however, consumed aluminium phosphide (Sulphas) tablets on 28th June 1986 and in a precarious condition was removed to Kothi hospital from where she was referred to the Civil Hospital, Satna for further management. The Naib Tehsildar- cum-Executive Magistrate concerned was called by the doctor who recorded her dying declaration. Karuna, however, died soon thereafter, on which information was sent to Police Station City Kotwali, Satna on 29th June 1986 and a case under Section 498 A and 306 of the IPC and Section 4 of the Dowry Prohibition Act was registered. On the completion of the investigation, the four accused i.e. the appellant, his father Manmohan Gautam, mother Ramdulari and brother 3 Anoop Kumar Gautam were committed to face trial and duly charged for the offences, as above mentioned. The trial court after recording the evidence of 20 witnesses and taking into account, in particular the ocular evidence, acquitted the parents and brother of the appellant but placing reliance on a letter dated 27th February 1986 Exhibit P-20 allegedly written by the appellant to his father-in-law held the case against the appellant proved and accordingly convicted and sentenced him, as already indicated above. In appeal the High Court confirmed the order of conviction and sentence. It is in these circumstances that the matter is before us by special leave. 5. Mr. Tankha, the learned Senior Counsel for the appellant has, at the very outset, pointed out that as per the findings recorded by the Trial Court and confirmed by the High Court, the evidence adduced by the Prosecution was unreliable so as to involve the three accused who had been acquitted although the ocular evidence if at all pointed directly towards Karuna's in-laws rather than at the appellant as being the guilty party. He has submitted that in the fact that the State had not chosen to challenge the acquittal of the three, it had to be held 4 that the evidence with regard to the present appellant too was ambivalent and insufficient to bring home the charge against him. He has further emphasized that the courts below too were conscious of this fact and had accordingly chosen to rely on the letter Exhibit P-20 in support of the ocular evidence against the appellant although the said letter was inadmissible

in evidence as it had not been proved, and had on the other hand ignored the dying declaration recorded by the Naib Tehsildar which exonerated all the accused of any wrongdoing. Ms. Makhija, the learned State Counsel has, however, pointed out that in the light of the presumption raised under Section 113-A of the Evidence Act, 1872 and the ocular evidence in the case there was other unimpeachable evidence against the appellant, even assuming that the letter Exhibit P-20 could not be looked into. She has relied on State of Punjab Vs. Iqbal Singh and Others (1991) 3 SCC 1 to support her plea that a presumption had advisedly been raised against an accused in an offence relating to abetment of suicide in view of the malaise of dowry which had afflicted 5 Indian society and if this gross social evil had to be curbed, the court must also lend a helping hand. "I had received letter of threat from accused Anand Kumar on 27.02.86 through Peon Achchhe Lal and that letter is exhibit P20. He had raised the demand for radio, watch, cycle and fan through that letter, at the time of gauna, I had given him watch, radio, cycle and fan as demanded in the letter." 7. We are of the opinion that this excerpt from his evidence cannot be said to be proof of the document as no statement was made that he recognized the handwriting or the signature of the appellant. Moreover, this letter had not been produced before the police during the course of the initial investigation and had been handed over to the police after several months. This fact, as also a reading of the letter, indicates that this was a concocted piece of evidence and the work of a legal mind, as no person would write such a letter meeting all legal requirements for implicating himself and his near relatives, in a claim for Dowry. 8. Faced with this situation, Ms. Makhija has pointed out that even if this letter was ignored, the other evidence against the appellant was sufficient to maintain his conviction. She has, in particular, relied on the evidence of Arun Kumar Mishra, the brother of the deceased PW-1, a friend of the deceased Sudha Tripathi PW-8, her father Ram Prasad PW-11, and Brij Kumari PW17 Karuna's Sister-in-law to submit that their evidence conclusively spelt out the prosecution's case. 7 We, however, find from a reading of the testimonies of these witnesses that the problem, if any, lay with Karuna's mother- in-law Ramdulari and she and nobody else was the villain and general allegations with regard to the other accused find mention only in the statement of Ram Prasad. We are, therefore, of the opinion that in this background and keeping

in view of the fact that Ramdulari has been acquitted, it would not be possible to maintain the conviction of the appellant on the basis of this evidence. 9. Ms. Makhija has then placed reliance on the presumption raised in a case of abetment of suicide by a married woman, as envisaged under Section 113-A of the Evidence Act to contend that the onus lay on the accused to prove his innocence. She has in this connection referred us to Iqbal Singh's case (Supra) to emphasize that the legislative intent in the introduction of Sections 113-A and 113-B of the Evidence Act was to strengthen "the Prosecution hands by permitting a presumption to be raised if certain foundational facts are established and the unfortunate event has taken place within seven years of marriage." She has accordingly 8 submitted that in the light of this presumption it was for the accused to prove that nothing amiss had happened at their instance. 10. Undoubtedly, the aforesaid provisions do raise a presumption but the facts of the case cannot be ignored. The different terminology of Sections 113-A and 113-B itself brings out the real purpose behind the two provisions and whereas Section 113-B places a heavier onus on an accused, the onus placed under Section 113-A is far lighter. We reproduce the two Sections hereunder to focus on this distinction: "113-A. Presumption as to abetment of suicide by a married woman.- When the question is whether the commission of suicide by a woman had been abetment by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.