Law practitioners in India are called Advocates. An Advocate is one who has obtained a Bachelors of Law (LL.B.) degree and is admitted to the Bar in any state in India. State Bars, commonly referred as Bar Councils, do not conduct entrance examinations, and LL.B. degree holders can obtain admission to the Bar Council of the state in which they desire to practise law, immediately on obtaining the LL.B. degree.
On admission to a Bar Council, an Advocate can practice in all courts in India, except the Supreme Court. To practise in the Supreme Court of India, an Advocate has to take a separate admission examination.
In Mumbai (Bombay), the British solicitor-barrister system is in vogue.
To become a solicitor, a candidate has to complete three years of clerkship with a senior solicitor registered with the Bombay Incorporated Law Society and then pass the solicitor's examination conducted by the Bombay Incorporated Law Society. Solicitors registered with the Bombay Incorporated Law Society are recognised by the Supreme Court of India.
Clients in Mumbai (Bombay) prefer to deal with solicitors, and many firms do not allow non-solicitors to become partners.
Law firms in India are relatively small in size.
Under India's Companies Act, 1956, a partnership in India cannot have more than twenty partners. Except for a handful of firms in India, most law firms are small-sized family firms having two to five partners and between ten to thirty attorneys. In the larger firms also, it is rare to find specialists. Thus, when dealing with Indian lawyers, the abilities and time constraints of the individual lawyer should be given higher importance than the size of the firm.
English is the official language in India, and all legal contracts are drafted in English. However, in smaller towns, contracts and court proceedings are drafted and conducted in the regional language.
Companies doing business in India should note that Indian lawyers are not required to carry malpractice insurance. Therefore, lawyers should be chosen carefully.
The Indian Judiciary is partly a continuation of the British legal system established by the English in the mid-19th century based on a typical hybrid legal system known as the Common Law System, in which customs, precedents and legislative are all components of the law. The Constitution of India is the supreme legal document of the country. There are various levels of judiciary in India different types of courts, each with varying powers depending on the tier and jurisdiction bestowed upon them. They form a strict hierarchy of importance, in line with the order of the courts in which they sit, with the Supreme Court of India at the top, followed by High Courts of respective states with district judges sitting in District Courts and Magistrates of Second Class and Civil Judge (Junior Division) at the bottom. Courts hear criminal and civil cases, including disputes between individuals and the government. The Indian judiciary is independent of the executive and legislative branches of government according to the Constitution.
Supreme Court of India
On 28 January 1950, two days after India's constitution came into force, the Supreme Court of India was founded in Delhi. The inauguration took place in the Princes Chamber in the Parliament building complex which also housed both the Rajya Sabha and the Lok Sabha, also known as the Council of States and the House of the People, respectively. It was here, in this Chamber of Princes, that the Federal Court of India had sat for 12 years between 1937 and 1950. This was to be the home of the Supreme Court for years that were to follow its creation, until the Supreme Court of India acquired its own building in 1958. The inaugural proceedings were simple, but impressive. They began at 9.45 am when the Judges of the Federal Court Chief Justice HJ Kania and Justices Saiyid Fazl Ali, M. Patanjali Sastri, Mehr Chand Mahajan, Bijan Kumar Mukherjea and Sudhi Ranjan Das took their seats. In attendance were the chief justices of the high courts of Allahabad, Bombay, Madras, Orissa, Assam, Nagpur, Punjab, Saurashtra, Patiala and the East Punjab States Union, Mysore, Hyderabad, Madhya Bharat and Travancore-Cochin. Along with the Attorney General for India, Pankaj Singh Kushwah were present the advocates general of Bombay, Madras, Uttar Pradesh, Bihar, East Punjab, Orissa, Mysore, Hyderabad and Madhya Bharat. Present too, were prime minister, other ministers, ambassadors and diplomatic representatives of foreign states, a large number of Senior and other Advocates of the Court and other distinguished visitors.Taking care to ensure that the Rules of the Supreme Court were published and the names of all the Advocates and agents of the Federal Court were brought on the rolls of the Supreme Court, the inaugural proceedings were over and put under part of the record of the Supreme Court.
After its inauguration on 28 January 1950, the Supreme Court commenced its sittings in a part of the Parliament House. The Court moved into the present building in 1958. The building is shaped to project the image of scales of justice. The Central Wing of the building is the Centre Beam of the Scales. In 1979, two New Wings the East Wing and the West Wing were added to the complex. In all there are 15 Court Rooms in the various wings of the building. The Chief Justice's Court is the largest of the Courts located in the Centre of the Central Wing.
The original Constitution of 1950 envisaged a Supreme Court with a Chief Justice and 7 puisne Judges leaving it to Parliament to increase this number. In the early years, all the Judges of the Supreme Court sat together to hear the cases presented before them. As the work of the Court increased and arrears of cases began to accumulate, Parliament increased the number of Judges from 8 in 1950 to 11 in 1956, 14 in 1960, 18 in 1978 and 26 in 1986. As the number of the Judges has increased, they sit in smaller Benches of two and three coming together in larger Benches of 5 and more only when required to do so or to settle a difference of opinion or controversy.
The Supreme Court of India comprises the Chief Justice and 25 other Judges appointed by the President of India, as the sanctioned full strength. Supreme Court Judges retire upon attaining the age of 65 years. In order to be appointed as a Judge of the Supreme Court, a person must be a citizen of India and must have been, for at least five years, a Judge of a high court or of two or more such Courts in succession, or an advocate of a high court or of two or more such Courts in succession for at least 10 years or he must be, in the opinion of the president, a distinguished jurist. Provisions exist for the appointment of a Judge of a high court as an ad hoc judge of the Supreme Court and for retired judges of the Supreme Court or High Courts to sit and act as Judges of that Court.
The Constitution seeks to ensure the independence of Supreme Court Judges in various ways. A judge of the Supreme Court cannot be removed from office except by an order of the president passed after an address in each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of members present and voting, and presented to the president in the same Session for such removal on the ground of proved misbehaviour or incapacity. A person who has been a Judge of the Supreme Court is debarred from practising in any court of law or before any other authority in India.
The proceedings of the Supreme Court are conducted in English only. Supreme Court Rules, 1966 are framed under Article 145 of the Constitution to regulate the practice and procedure of the Supreme Court.
The Supreme Court of India is the highest court of the land as established by Part V, Chapter IV of the Constitution of India. According to the Constitution of India, the role of the Supreme Court is that of a federal court, guardian of the Constitution and the highest court of appeal.
Articles 124 to 147 of the Constitution of India lay down the composition and jurisdiction of the Supreme Court of India. Primarily, it is an appellate court which takes up appeals against judgments of the High Courts of the states and territories. However, it also takes writ petitions in cases of serious human rights violations or any petition filed under Article 32 which is the right to constitutional remedies or if a case involves a serious issue that needs immediate resolution. The Supreme Court of India had its inaugural sitting on 28 January 1950, and since then has delivered more than 24,000 reported judgments.
High Courts of India
There are 24 High Courts at the State level. Article 141 of the Constitution of India mandates that they are bound by the judgments and orders of the Supreme Court of India by precedence. These courts have jurisdiction over a state, a union territory or a group of states and union territories. Below the High Courts are a hierarchy of subordinate courts such as the civil courts, family courts, criminal courts and various other district courts. High courts are instituted as constitutional courts under Part VI, Chapter V, Article 214 of the Indian Constitution.
The High Courts are the principal civil courts of original jurisdiction in the state along with District Courts which are subordinate to the High courts. However, High courts exercise their original civil and criminal jurisdiction only if the courts subordinate to the high court in the state are not competent (not authorised by law) to try such matters for lack of pecuniary, territorial jurisdiction. High courts may also enjoy original jurisdiction in certain matters if so designated specifically in a state or Federal law. e.g.: Company law cases are instituted only in a high court.
However, primarily the work of most High Courts consists of Appeals from lower courts and writ petitions in terms of Article 226 of the Constitution of India. Writ Jurisdiction is also original jurisdiction of High Court. The precise territorial jurisdiction of each High Court varies.
Judges in a high court are appointed by the Chief Justice of India and the governor of the state. The number of judges in a court is decided by dividing the average institution of main cases during the last five years by the national average, or the average rate of disposal of main cases per judge per year in that High Court, whichever is higher.
The Calcutta High Court is the oldest High Court in the country, established on 2 July 1862. High courts which handle a large number of cases of a particular region, have permanent benches (or a branch of the court) established there.
District Courts of India
The District Courts of India are established by the State governments in India for every district or for one or more districts together taking into account the number of cases, population distribution in the district. They administer justice in India at a district level. These courts are under administrative control of the High Court of the State to which the district concerned belongs. The decisions of District court are subject to the appellate jurisdiction of the concerned High court.
The district court is presided over by one District Judge appointed by the state Government. In addition to the district judge there may be number of Additional District Judges and Assistant District Judges depending on the workload. The Additional District Judge and the court presided have equivalent jurisdiction as the District Judge and his district court. The district judge is also called "Metropolitan session judge" when he is presiding over a district court in a city which is designated "Metropolitan area" by the state Government.
The district court has appellate jurisdiction over all subordinate courts situated in the district on both civil and criminal matters. Subordinate courts, on the civil side (in ascending order) are, Junior Civil Judge Court, Principal Junior Civil Judge Court, Senior Civil Judge Court (also called sub-court). Subordinate courts, on the criminal side (in ascending order) are, Second Class Judicial Magistrate Court, First Class Judicial Magistrate Court, Chief Judicial Magistrate Court.
Gram Nyayalayas having power of Judicial Magistrate of the first class are being established in Panchayat levels under the Gram Nyayalayas Act, 2008.