INTRODUCTION
India and Pakistan are two countries born from the same soil, once a single landmass, and shared history. Despite their separation, their legal systems retain echoes of their shared past, inheriting laws from the British legal system and hierarchical structure. The study deals with the comparative exploration of the judicial design in India and Pakistan. It will encapsulate not only the similarities but also the differences and challenges put forth. Scrutinising and studying these pointers will help to gain a deeper appreciation for the complexities of upholding the rule of law in dynamic democracies.
HIERARCHY OF COURTS
There are different levels of court hierarchy in India. The Supreme Court of India occupies the top-notch position. As the name suggests, it is India’s highest and the apex court. It was established on January 28th, 1950. In the present scenario, 33 judges and the Chief Justice of India (currently- D.Y. Chandrachud) are in the Supreme Court. High Court is the next in the descending order lane. They are the highest court at a state level.[1]There are 25 high courts in India, and the President of India decides the total number of judges in every high court as per Article 216.[2]District Courts are the highest court in a district. They are established by the respective state governments, usually based on the population density of the defined region and the caseload upon it.[3]The chart then gets subdivided into three segments: Civil courts, Criminal courts and Revenue courts, where civil courts are further fractionated into District Judge’s court, Sub Judge’s court and Munsif Court (in descending order of hierarchy). Criminal courts are sub-grouped as Sessions Court, Court of Judicial Magistrate of First Class, Court of Judicial Magistrate of Second Class, and Executive Magistrates. Lastly, the Revenue courts are on top of the Board of Revenue, Commissioner Collector, Tehsildar and Assistant Tehsildar.[4]
Like the Indian Judiciary system, Pakistan’s Judiciary is three tired. The District Courts occupy the lowest tier, which handles all the criminal and civil matters in the nation. Based on offence, there are subdivisions: Sessions Court, where significant crimes involving the death penalty are treated and Magistrate Courts, where Magistrates treat non-capital violations of first, second and third class.[5]The second level is occupied by the High Court, which supervises the lower courts and issues writs. It also has the power to sentence imprisonment up to 25 years and levy fines. The country’s apex court, the Supreme Court of Pakistan, exercises original, appellate, and advisory jurisdiction, similar to the Indian Judiciary system. There are 19 judges in the Supreme Court of Pakistan, including the Chief Justice and two ad hoc judges. They interpret the constitution and can uphold an individual’s fundamental rights or declare a law unconstitutional if it is found against Sharia(Islamic law and principles). Additionally, the Federal Shariat Court was established on 26 May 1980 to exclusively determine the rules compatible with Islamic regulations and statutes. Ulama or the religious scholars assist the court through an Islamic advisory board.[6]
SIMILARITIES
Both nations share some similar features in their judiciary systems. Some of them are discussed below-
- Post-imperial legacy- India and Pakistan inherited the British system of hierarchical order amongst courts in the country, comprising the Supreme Court, High Courts and lower courts. This system also helped develop the technique of judicial precedents.[7]
- Custodians of the constitution- Both countries give the power of interpreting the form to the apex court of their country, i.e., the Supreme Court. Both emphasise the importance of judicial interdependence as a pillar of the rule of law and ensure that Fundamental rights prevail.[8]
- Judicial Review- Courts of both nations have the power to strike down unconstitutional legislation and previous judgments.[9]
DIFFERENCES
The dissimilarities between the judicial systems of both nations are as follows-
- Judicial Activism- Where proactive Judiciary pursues social justice and empowerment in India, Pakistan experiences judicial deference to the branches of government.[10]
- Appointment of Judges- In Pakistan, the procedure is written under Article 177[11] and in India under 124[12]. Both countries have a similar approach towards appointing judges, i.e., the presidents of their respective countries appoint judges on the advice of judicial committees. In Pakistan, the judicial commission comprises four senior-most judges of the Supreme Court of Pakistan: a former Chief Justice or former Judge of the Supreme Court, a union minister of law and justice, the Attorney-General of Pakistan, and a senior Advocate.[13]In India, the President appoints the judges on the recommendation of the Chief Justice and four senior judges of the Supreme Court of India.[14] In a gist, the executive has greater power in appointments in Pakistan, whereas the judiciary plays a crucial role in India.
- Islamic Influence- A layer is added tothe Pakistani Judiciary system by influencing the law through religion. Unlike India, Pakistan is not secular and an Islamic nation; faith is given weightage while framing laws, especially when it comes to personal and family laws.[15]
MUTUAL DILEMMAS
Despite the similarities and differences between the judiciary systems of India and Pakistan, they have some shared challenges that both need to work on and eradicate.
- Pendency- There is an enormous backlog of court cases, which delays justice.[16][17]
- Corruption and nepotism- They are expected to both, as in India, the judiciary has the upper hand in appointing judges, which leads to nepotism. In Pakistan, the government has an edge, which leads to the trusted ones of the officials to be given the title.[18]
- Interdependence of Judiciary- Political interference is felt in both countries, leading to compromise in impartiality and justice.[19]
CONCLUSION
The study reveals the interplay of shared legacy, distinct approaches, and common challenges in India’s and Pakistan’s judicial systems. The study has revealed the universal quest for a fair and equitable legal system. As these nations continue to evolve, they adapt to the ever-changing demands of society. The pursuit of justice knows no borders, and thus, both countries should learn from each other’s experiences and strive towards a better future to ensure impartiality and fairness.
Author(s) Name: Priyal Bansal (Dr. Ram Manohar Lohiya National Law University ,Lucknow)
Reference(s):
[1] Vijay Pal Dalmia, ‘Hierarchy of Courts in India’ (Lexology, 27 June 2022) <https://www.lexology.com/library/detail.aspx?g=49df79a8-4bd4-42a3-b68e-3a753a4eb849> accessed 15 December 2023
[2] The Constitution of India, 1950
[3] Taruni Kavuri, ‘Introduction to the Indian Judicial System’ (Animal Legal and Historical Center, 2020) <https://www.animallaw.info/article/introduction-indian-judicial-system> accessed 15 December 2023
[4]Vijay Pal Dalmia, ‘Hierarchy of Courts in India’ (Lexology, 27 June 2022) <https://www.lexology.com/library/detail.aspx?g=49df79a8-4bd4-42a3-b68e-3a753a4eb849> accessed 15 December 2023
[5]Commonwealth Governance, Judicial System of Pakistan<https://www.commonwealthgovernance.org/countries/asia/pakistan/judicial-system/> accessed 15 December 2023
[6] ‘Role of Judiciary’ (Research Society of International Law) <https://rsilpak.org/resource-bank-pakistans-criminal-justice-system/role-of-judiciary/> accessed 15 December 2023
[7] Abhilasha Deshmukh, ‘Rule of Law: A Comparative Analysis of India and Pakistan’ (2022) 5 (1) IJLMH <file:///C:/Users/user/Downloads/Rule-of-Law-Comparative-Analysis-of-India-and-Pakistan.pdf> accessed 15 December 20239
[8]Abhilasha Deshmukh, ‘Rule of Law: A Comparative Analysis of India and Pakistan’ (2022) 5 (1) IJLMH <file:///C:/Users/user/Downloads/Rule-of-Law-Comparative-Analysis-of-India-and-Pakistan.pdf> accessed 15 December 20239
[9]Abhilasha Deshmukh, ‘Rule of Law: A Comparative Analysis of India and Pakistan’ (2022) 5 (1) IJLMH <file:///C:/Users/user/Downloads/Rule-of-Law-Comparative-Analysis-of-India-and-Pakistan.pdf> accessed 15 December 20239
[10] Gunjan Ahuja & Ankita Kumar Gupta, ‘Judicial Activism: A Comparative Study of India, South Africa and Pakistan (2022) 4 (3) IJLLR <https://3fdef50c-add3-4615-a675-a91741bcb5c0.usrfiles.com/ugd/3fdef5_acdb155ed6024212ad2cd59ed70051bb.pdf> accessed 15 December 2023
[11] The Constitution of Islamic Republic of Pakistan, 1973
[12] The Constitution of India, 1950
[13] Baran Khan, ‘Procedure of Appointment of Judges of the Supreme Court and High Courts’ (Pakistan Lawyer, 10 February 2023) <https://pakistanlawyer.com/articles/story/procedure-of-appointment-of-judges-of-the-supreme-court-and-high-courts> accessed 15 December 2023
[14] Department of Justice, Memorandum of procedure of appointment of Supreme Court Judges <https://doj.gov.in/memorandum-of-procedure-of-appointment-of-supreme-court-judges/>accessed 15 December 2023
[15] Abdul Ghafur Muslim, ‘Islamization of Laws in Pakistan: Problems and Prospects’ (1987) 26 (3) Islamic Studies <http://www.jstor.org/stable/20839846> accessed 15 December 2023
[16] Dr. Sadaqut Ali & Dr. Muhammad Hassan, ‘An Evaluation of Pending Cases in the Judiciary of Pakistan: Figures and Statistics’ (2022) 6 (2) PSSR <https://pssr.org.pk/issues/v6/2/evaluation-of-pending-cases-in-the-judiciary-of-pakistan-figures-and-statistics.pdf> accessed 15 December 2023
[17] ‘The clogged state of the Indian Judiciary’ The Hindu (India, 10 May 2022) <https://www.thehindu.com/news/national/indian-judiciary-pendency-data-courts-statistics-explain-judges-ramana-chief-justiceundertrials/article65378182.ece#:~:text=The%20story%20so%20far%3A%20The,pending%20for%20over%2030%20years.> accessed 15 December 2023
[18] Dr. Rajkumar Singh, ‘Present problems of Indian Judiciary’ Rising Kashmir (India, 9 November 2020) <https://risingkashmir.com/present-problems-of-indian-judiciary> accessed 15 December 2023
[19]Yasser Kureshi, ‘Pakistani Judiciary’s Ambitions and Interventions’ (Carnegie Endowment for International Peace, 23 June 2022) <https://carnegieendowment.org/2022/06/23/politics-at-bench-pakistani-judiciary-s-ambitions-and-interventions-pub-87371> accessed 15 December 2023
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