It is also imperatively necessary that the courts should be independent agencies rendering decisions according to publicly known laws and not as instruments of the regime in carrying out its political and general purposes.
For example, the Soviet Law of August 1938 prescribed that it was the duty of the Soviet Courts “to educate the citizens in a spirit of devotion to the fatherland and to the cause of socialism, in the spirit of an exact and unfaltering performance of Soviet laws, careful attitude towards Socialist property, labour discipline, honest fulfillment of State and public duties, respect towards the rules of the Commonwealth.” The primary function of the Soviet Courts was the protection of the social and State system of the USSR. The Soviet judges, too, had never claimed to be independent of the policy of the government. Really, they took pride in the fact that the courts participated directly in the historic venture of the construction of the communist society. This aspect sharply distinguishes the Soviet judiciary from that of other democratic countries which are wedded to the principles of the independence and impartiality of the judiciary and the Rule of Law.
Courts of Appeal. The organisation of the judiciary is not similar to either the legislative or the executive department. Courts all over the world are organised on an ascending scale, one above another, with a right to appeal from the lower to the higher courts. At the apex there is a final or Supreme Court with powers of revision or cessation, that is, annulling the decision of a court or judicial tribunal. The function of the court of appeal is to make sure that the law is being interpreted in substantially the same fashion in all the different parts of the judicial structure and to reverse decisions which seem to be based upon an erroneous interpretation of the law. In performing their functions courts of appeal must have in mind primarily the general principles that seem to be involved in any case which reaches them, rather than the concrete merits of the immediate controversy? Technical rules governing appeals generally are adjusted to this conception.
The cases which reach the highest courts are normally argued there solely on the basis of certain specific dubious points of legal interpretation. In some countries, the highest court of appeal is also vested with an original jurisdiction and such specified cases are tried there. A court of appeal consists of several judges generally sitting together in a bench and reaching their decisions by a majority vote. Usually, the court gives an opinion explaining the legal grounds for its decision. Sometimes, individual judges give separate opinions, including those judges who disagree with the majority decision and whose opinions are consequently called “dissenting opinions.” The judicial opinions of the higher courts are regularly published and these opinions constitute a major authoritative source of law in countries following Anglo-Saxon jurisprudence. Trial Courts: Trial Courts primarily or exclusively conduct the initial trial of cases.
In a trial court both facts and law must be considered. The plaintiff, or prosecution in a criminal case, submits evidence to support his contentions as to the facts of the case. In civil cases much of the evidence, particularly in countries following Roman law jurisprudence, may be in the form of “depositions” sworn to by witnesses outside of the actual trial. In common law countries the evidence in criminal cases must in general be submitted orally in court by the witnesses in person. The testimony submitted orally by witnesses for the plaintiff or prosecution is subject to “cross-examination” by the defence. After the evidence for both the parties has been concluded, arguments are submitted by their respective lawyers and, then, the court renders decision. In all countries there are special trial courts for petty cases involving small civil claims or minor infractions of criminal law. A single judge usually presides and makes the decision in such courts, and proceedings are likely to be highly informal.
Other courts handle the trial of more serious cases, and judges of these courts occupy a relatively high rank. Sometimes an intermediate set of courts is provided for the trial of offences or of civil claims of an intermediate grade: of seriousness. In most jurisdictions some trial courts with highly specialised jurisdiction exist alongside those which handle the more ordinary cases, for example, courts dealing with the probate and administration of the estate of deceased persons, juvenile delinquency, and claims for compensation for actions of the governmental services. In countries with federal polity there are usually two sets of Courts: Federal and state or provincial or cantonal courts. The Federal Courts exercise the national or general jurisdiction of the national or Central Government and the state, provincial or cantonal courts exercise the local jurisdiction in each federating unit.
In the United States of America the federal government has its own judicial organisation consisting of the Supreme Court, Federal Courts of Appeal, and the District Courts. There is at least one District Court in each state. If the state is sufficiently large with a hefty population there may be many such courts in that state, each having a specified territory under its jurisdiction.
Then, each state has its own judicial organisation, and its own law and procedure applicable to the civil and criminal jurisdiction of the state. In India, too, there is the federal judicial organ, the Supreme Court, that stands alone, and the state judiciary. The jurisdiction of these courts differs. But the Supreme Court of India, unlike the one in the United States, has appellate, civil and criminal jurisdiction throughout India, and it performs advisory functions also.’3 Moreover, it has no organisation of its own in the states. In spite of these common features there is, however, considerable variety of judicial organisation in modern States.
In the Common Law countries, as in continental Countries, all courts, except those of the justices of peace, are “collegial”, that is to say, they consist of a bench of judges, and no judgment is valid unless rendered by at least three judges. “Plurality of Judges,” it is believed, “afford a safeguard against arbitrariness and enables the court in criminal cases to resist more effectively the influence of the public prosecutor.” There is a proverb in France, judge unique (a single judge is an iniquitous judge), which gives expression to French antipathy to judgment rendered by a single judge. In the trial of serious crimes it is usual to empanel a jury of impartial citizens to determine the guilt or innocence of the accused under instruction as to the relevant legal rules by the presiding judge or judges.
In Common Law countries a similar use of a jury is traditional, but now it is less common in practice in serious civil cases as well. Secondly, in France, and other Continental countries, there is unity of civil and criminal justice, which means that civil actions and criminal cases are for the most part handled by the same courts and not by separate courts as in Britain and in the United States. In the third place, in the Anglo-American countries judges go on “circuit”, holding courts in different places for the convenience of litigants, that is, the courts go to the litigants. On the Continent of Europe the courts are “sedentary” or localised, that is, courts commonly sit only at one specified place and the litigants take their cases to have them decided. In Britain, the United States and India, there is the Rule of Law.
This means that all citizens private individuals and public officials—are equal before the law and they are amenable to the same court, the same law and the procedure prescribed under the law. In France, and the rest of the Continental countries, there are two sets of judicial organisation: ordinary courts and administrative courts. Administrative courts deal with the controversies of public officials in their relations both with private individuals and between themselves. The Administrative Law, which is applied in the Administrative Courts, is quite distinct from the ordinary law which the ordinary courts apply. In the Anglo-American countries precedents or ‘judge-made’ law constitutes an integral part of the judicial process and are applied by courts to identical cases.
Continental countries discourage judge-made law or judicial precedents. Finally, in the United States and India, judiciary is the guardian of the Constitution and it can declare any law ultra vires. In countries like Britain courts must accept and apply law as it emanates from the legislature. They have no jurisdiction to declare it constitutional or unconstitutional.