Structure of the Courts:
India has a quasi-federal structure with 29 States further sub-divided into about 445 administrative Districts. The Judicial system however has a unified structure. The Supreme Court, the High Courts and the lower Courts constitute a single Judiciary. Broadly there is a three - tier division. Each District has a District Court and each State a High Court. The Supreme Court of India is the Apex Court. Each State has its own laws constituting Courts subordinate to the District Courts. Besides, a number of judicial Tribunals have been set up in specialized areas. The significant Tribunals are: Company Law Board; Monopolistic and Restrictive Trade Practices Commission; Securities Appellate Tribunal; Consumer Protection Forum; Board for Industrial and Financial Reconstruction; Customs and Excise Control Tribunal; Tax Tribunal; etc. These Tribunals function under the supervisory jurisdiction of the High Court where they may be situated.
The Judiciary:
The Indian judiciary has a reputation of being independent and non-partisan. Judges are not appointed on political considerations. They enjoy a high standing in society. Though their salaries are modest, they are provided colonial style government accommodation and liberal perks.
The Bar:
India has a unified all India Bar and an advocate enrolled with any State Bar Council can practice and appear in any court of the land including the Supreme Court of India. However for doing any acting work1 in the Supreme Court a qualifying examination (called an ‘Advocate on Record’ exam) needs to be cleared.
Foreign lawyers are not permitted to appear in Courts, though they can appear in arbitrations.
Practice and Procedure:
The influence of the British Judicial System continues in significant aspects. The official language for Court proceedings in the High Court & the Supreme Court is English. Lawyers don a gown and a band as part of their uniform and Judges are addressed as "My Lord".
The procedural law of the land as well as most commercial and corporate laws are modeled on English laws. English case law is often referred to and relied upon both by lawyers and judges. As in England, a certain class of litigation lawyers are designated as "Senior Advocates" (equivalent to QCs). They do not deal with clients directly and take instructions only through solicitors. Certain lawyers however, follow a mixed practice i.e., both plead and act in relation to court matters.
There is a great tradition and emphasis on oral arguments. Counsel are seldom restrained in oral arguments and complex hearings may well take days of arguments to conclude.
Specialisation is relatively a new phenomenon. Most lawyers have a wide-ranging practice.
Arbitration:
In 1996, arbitration got an impetus with the enactment of the Arbitration and Conciliation Act. This is based on the UNCITRAL Model Rules. The earlier enactment of 1940 was widely considered ineffective. With the enactment of the new law, arbitration has gained in popularity and is fast becoming the preferred route for settlement of commercial disputes.
India does not have a separate Arbitration Lawyers Bar. Generally, court lawyers are engaged for arbitrations that are conducted over the weekends or after court hours. Often retired High Court or Supreme Court Judges are appointed as arbitrators.
The Indian Council of Arbitration, promoted by the Ministry of Commerce is a leading Institute for administration of arbitrations. However, due to its low payment scales for arbitrators, it is not suitable for large international arbitrations.
Footnotes:
1
http://www.kaplegal.com/content/articles/ That is, file power of Attorney for clients; interact in the Registry for administrative matters etc.The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.