Fundamentals of Indian Legal System

Prof. V.K. Unni IIM Calcutta E-mail: unniv@iimcal.ac.in

Fundamentals of Indian Legal System

Law is an instrument of social control whose objective is to

give everyone his due. Whenever wrongs are committed against the society or individuals, law steps in to provide a remedy Wrongs committed against the society are called crimes, and thus it becomes the duty of the State to protect the society from offenders. So prosecutors have been appointed by the Government to conduct criminal cases before Courts of Law. However, disputes relating to property, breach of contracts, wrongs committed in money transactions, minor omissions etc are categorized as civil wrongs.

Fundamentals of Indian Legal System

In such cases civil suits should be initiated by the aggrieved persons.
Courts of law administer justice by considering the nature of the

wrong done. Criminals are convicted and punished before criminal courts. Civil wrongs are given remedies before civil courts by granting injunctions or by payment of damages or compensation to the aggrieved party. Hierarchy of Courts Every suit should be instituted before the court of lowest jurisdiction. In the civil side the Munsif's Court is the court of lowest jurisdiction

Fundamentals of Indian Legal System

If the value of the subject matter of the suit is worth rupees one

lakh or below, the Munsif's Court is the competent court to try the suit, this monetary value may vary from state to state If the value exceeds above rupees one lakh the suit should be filed before the Subordinate Judge's Court (Sub Court), this monetary value may vary from state to state An appeal from the decisions of the Munsif is filed before the District Court. Appeals from the decisions of the Sub Court is filed before the District Court if the subject matter of the suit is of value up to rupees two lakhs. If the value is above two lakhs, the appeal should be filed before the High Court and next to the Supreme Court

Fundamentals of Indian Legal System

Administration of criminal justice is carried out through Magistrate

Courts and Sessions courts. The Court at the lowest level is called Judicial Magistrate of the second class. This Court is competent to try the case if the offence is punishable with imprisonment for a term not exceeding one year, or with fine not exceeding five thousand rupees, or with both. The First Class Magistrate is competent to try offences punishable with imprisonment for a term not exceeding three years or with fine up to ten thousand rupees The Chief Judicial Magistrate can impose any fine and punishment up to seven years imprisonment

Fundamentals of Indian Legal System

The Assistant Sessions Judge is competent to impose punishments up

to ten years imprisonment and any fine. The Sessions Judge can impose any punishment authorized by law; but the sentence of death passed by him should be subject to the confirmation by the High Court. High Court High Court stands at the head of a State's judicial administration Each High Court comprises of a Chief Justice and such other Judges as the President of India may, from time to time, appoint. The High Court has original and appellate jurisdiction Original Jurisdiction means that all such cases begin or originate in that court only, while appellate jurisdiction deals with the power of a superior/higher court to hear and decide appeals against the judgment of a lower court

Fundamentals of Indian Legal System

Each High Court has power to issue to any person within its

jurisdiction writs, orders or directions. Writs are in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for enforcement of Fundamental Rights and for any other purpose The High Court has the power to withdraw cases from the subordinate courts if the case involves a substantial question of law as to the interpretation of the constitution. Supreme Court The Supreme Court is the highest court in the country. It has original, appellate and advisory jurisdiction.

Fundamentals of Indian Legal System

Original Jurisdiction Original Jurisdiction means that all such cases begin or originate in that court only. ( in other words such cases cannot be initiated in any other court) According to the Constitution the Supreme Court has original jurisdiction in the following cases (a) Disputes between the Government of India on the one side and one or more States on the other side. (b) Disputes between the Government of India and one or more States on one side and one or more States on the other side. (c) Disputes between two or more States

Fundamentals of Indian Legal System

(d)The Supreme Court has also been invested with special powers in

the enforcement of Fundamental Rights. (In this connection, it has the power to issue directions or writs) Appellate Jurisdiction The power of a superior/higher court to hear and decide appeals against the judgment of a lower court is called appellate jurisdiction. The Supreme Court has extensive powers dealing with appellate jurisdiction. It hears appeals against the judgment of the High Courts and thus, it is the highest and the final Court of Appeal If one of the parties to a dispute is not satisfied with the decision of the High Court, it can go to the Supreme Court and file an appeal

Fundamentals of Indian Legal System

Advisory Jurisdiction This power implies Courts right to give advice, if sought. Under advisory jurisdiction, the President of India may refer any question of law or public importance to Supreme Court for its advice. But the Supreme Court is not bound to give advice. In case, the advice is sent to the President, he/she may or may not accept it. Writs Indian Constitution confers original jurisdiction on the Supreme Court to issue directions, orders or writs for the enforcement of fundamental rights.

Fundamentals of Indian Legal System

Similar powers are also conferred on the High Court by the

Constitution. The writ jurisdiction of the High court is wider than that of the Supreme Court. The High Court can issue writs for the violation of fundamental rights or for any other purpose There are five types of Writs- Habeas Corpus, Mandamus, Certiorari Quo warranto and Prohibition and all abovesaid writs can be issued by Supreme Court and High Courts Habeas Corpus: "Habeas Corpus" is a writ issued to release a person who has been detained unlawfully whether in prison or in private custody. When the writ is issued, the person who is detained should be produced before the Court and if the detention is found illegal the Court will order that he be immediately released

Fundamentals of Indian Legal System

Mandamus: Mandamus is an order from the Supreme Court or High Court to a lower court or tribunal or public authority to perform a public or statutory duty Certiorari: The writ of certiorari can be issued by the Supreme Court or any High Court for quashing the order already passed by an inferior court, tribunal or quasi/semi judicial authority Quo-Warranto It is a writ issued with a view to restrain a person from holding a public office which he is not entitled. The writ of quo-warranto is often used to prevent illegal assumption of any public office or taking charge of any public office by any body Prohibition The Writ of prohibition is issued when a lower court or a body tries to transgress the limits or powers vested in it.

Fundamentals of Indian Legal System

The writ of prohibition is issued by any High Court or the Supreme

Court to any inferior court, or quasi judicial body prohibiting the latter from continuing the proceedings in a particular case, where it has no authority to deal with that case Court of Record Court of Record means a court whose acts and proceedings are kept on permanent record Such a Court has also the power to punish for its contempt or disrespect The Supreme Court is a Court of Record. Thus all its decisions and judgments are cited as precedents in all courts of the country. They have the force of law and are binding on all lower Courts, including the High Courts

Fundamentals of Indian Legal System

A High Court is also a court of record, like the Supreme Court.
Lower courts in a State are bound to follow the decisions of the

High Court which are cited as precedents. A High Court has also the power to punish for its contempt or disrespect. Fundamental Rights Guaranteed under Constitution of India People in democratic countries enjoy certain rights, which are protected by judicial system of every country Their violation, even by the State, is not allowed by the courts. India respects the rights of the people, which are listed in Indian Constitution, under the heading Fundamental Rights.

Fundamentals of Indian Legal System

The rights, which are enshrined in the Constitution under Part III

are called Fundamental Rights. These rights ensure the fullest physical, mental and moral development of every citizen. They include those basic freedoms and conditions which alone can make life worth living. No democracy can function in the absence of basic rights such as freedom of speech and expression. Fundamental Rights provide standards of conduct, justice and fair play and thus they serve as a check on the government

Fundamentals of Indian Legal System

Various social, religious, economic and political problems in India

make Fundamental Rights important. In the Constitution, Fundamental Rights are enumerated in Part III from Article 14 to 32 Fundamental rights are justiciable, which means that if any of these rights are violated by the government or anyone else, the individual has the right to approach the Supreme Court or High Courts for the protection of his/her Fundamental Rights Indian Constitution does not permit the legislature and the executive to curb these rights either by law or by an executive order. The Supreme Court or the High Courts can set aside any law that is found to be violating or abridging the Fundamental Rights

Fundamentals of Indian Legal System

The Constitution empowers the government to impose certain

restrictions on the enjoyment of fundamental rights in the interest of public good Initially the Right to Property was also enshrined in the Constitution of India. However the Right to Property was removed from the list of Fundamental Rights in the year 1976, since then, it has been made a legal right. The existing Fundamental Rights broadly fall under the following topics Right to Equality Right to Freedom, which also covers protection of life and personal liberty

Fundamentals of Indian Legal System

Right against Exploitation
Right to Freedom of Religion

Cultural and Educational Rights, and Right to Constitutional Remedies like writs

Directive Principles Directive Principles of State Policy are in the form of instructions/guidelines to the governments at the centre as well as states. Though these principles are non-justiciable, they are very important in the governance of the country. They were incorporated in Indian Constitution to provide economic justice and to avoid concentration of wealth in the hands of a few people.

Fundamentals of Indian Legal System

They are the directives to the future governments to incorporate

them in the decisions and policies to be formulated by them Directive Principles of State Policy have been grouped into four categories. These are: a) the economic and social principles, b) the Gandhian principles, c) Principles and Policies relating to international peace and security and d) miscellaneous.

Fundamentals of Indian Legal System

Some of the Directive Principles covering economic and social Principles are The state shall endeavour to achieve Social and Economic welfare of the people by: a) providing adequate means of livelihood for both men and women. b) reorganising the economic system in a way to avoid concentration of wealth in few hands. c) securing equal pay for equal work for both men and women d) making provisions for securing just and humane conditions of work and for maternity relief. e) taking steps to secure the participation of workers in the management of undertakings

Fundamentals of Indian Legal System

Some of the Directive Principles covering Gandhian Principles are a) To organise village Panchayats. b) To promote cottage industries in rural areas. c) To prohibit intoxicating drinks and drugs that are injurious to health. Some of the Directive Principles covering International Peace And Security : India should render active cooperation for world peace and security and for that the state shall endeavour to : a) promote international peace and security. b) maintain just and honourable relations between nations. c) foster respect for international laws and treaty obligations

Fundamentals of Indian Legal System

Miscellaneous The Directive Principles in this category call upon the state a) To secure for all Indians a uniform civil code. b) To protect historical monuments. c) To save environment from pollution and protect wild life Fundamental Rights Vs Directive Principles In spite of these differences, there is a close relationship between the two Fundamental Rights and Directive Principles are complementary and supplementary to each other While the Fundamental Rights establish political democracy, the Directive Principles establish economic and social democracy

Fundamentals of Indian Legal System

Law making Powers Provided by Indian Constitution The Indian Constitution provides for distribution of legislative powers between the Union (Parliament) and the States (Legislatures) As per the Indian Constitution a) Parliament may make laws for the whole or any part of the territory of India and b) the legislature of a State may make laws for the whole or any part of the State. The division of the powers of the Union and the State is based on the distribution of the powers as stated by the three lists laid down by the Indian Constitution

Fundamentals of Indian Legal System

These lists separate the powers vested on the State and the Union.
They are the Union List, the State List and the Concurrent List.

The Union List contains legislations, on which the Union enjoys

exclusive control. Some of the most important topics under the Union List are a) Defence b) Banking c) Telecommunications d) Insurance e) Currency f) Foreign Affairs

Fundamentals of Indian Legal System

The State List consists of subjects all of which are exclusive legislative

powers of the State. Some of the important subjects enlisted in the State list are as follows: a) Public Order and Police b) State Taxes and Duties c) Agriculture d) Local governments The Concurrent List: contains items, which are powers vested on the State as well as the Union Some of the subjects included in the Concurrent List are Trusts, Contracts, Education etc However, in case there is any repugnance, the Union Parliament will prevail over the State legislature

Fundamentals of Indian Legal System

Prof. V.K. Unni IIM Calcutta E-mail: unniv@iimcal.ac.in