Fundamentals of Indian Legal System

V.K. Unni
Professor
IIM Calcutta
E-mail: unniv@iimcal.ac.in
 Legal System –Rule of Law

 The rule of law is a concept designed to keep life fair, just and
orderly
 It applies to every society and thus to every business
 The rule of law has no clear definition, in simple words it
means no one is above the law.
 The rule of law also means that there are clear, understandable
rules that citizens, governments and businesses have to obey
 The rule of law provides a framework for the manner in which
one can act and operate and holds people, businesses and
governments accountable for their actions.
 Fundamentals of Indian Legal System
 Law thus acts as 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 individual or 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,
nuisance 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 by criminal courts.
 Civil wrongs are given remedies by civil courts through granting of
injunctions (restraint order) or by payment of damages/
compensation to the aggrieved party
Major Legal Systems around the Globe
 Across the globe there are two kinds of legal systems
1) common law system (India, U.K, Canada, Australia etc)
2) civil law system (China, Japan, Germany etc)
 About 150 countries follow civil law system while about 80 nations
follow common law.
 Fundamentals of Indian Legal System
 The major difference between the two systems is that in common law
countries, case law made available through published judicial
opinions is of primary importance, whereas in civil law systems,
codified statutes are of importance
 However these divisions are not as clear-cut as they might appear and
as a matter of fact many countries use a mix of features from
common and civil law systems
 The original source of the common law system is the English
monarchy, which used to issue formal orders called “writs” when
justice had to be done.
 Since writs were not sufficient to cover all scenarios courts of equity
were ultimately established to hear complaints and devise appropriate
remedies based on equitable principles
 Since these decisions were collected and published, it became
possible for courts to look up precedential opinions and apply them to
current cases resulting in the development of common law
 Fundamentals of Indian Legal System
 Civil law in other European nations, owes its origins to the code of
laws compiled by the Roman Emperor Justinian around 600 C.E.
 Authoritative legal codes with roots in these laws subsequently
developed over many centuries in various countries, leading to
similar legal systems, each with their own sets of laws.
 In civil law countries, judges are often described as “investigators as
they generally take the lead in the proceedings by bringing charges,
establishing facts through witness examination and applying
remedies found in legal codes (i.e. Inquisitorial system)
 Lawyers represent the interests of their clients in civil proceedings,
but have a less important role
 Fundamentals of Indian Legal System
 In contrast, in a common law system lawyers make
presentations to the judge and examine witnesses themselves
 The proceedings are then “refereed” by the judge, who has
somewhat greater flexibility than in a civil law system to grant
an appropriate remedy after the conclusion of the case.
 Here the lawyers argue before the court and attempt to persuade
others on points of law and fact, and maintain a very active role
in legal proceedings (Adversarial System)
 In common law countries, it is prohibited for anyone other than
a fully licensed lawyer to prepare legal documents of any kind
for another person or entity.
 Fundamentals of Indian Legal System
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
 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 (for e.g. the limit of
Rs. 1 lakh is applicable in Kerala)
 If the value exceeds above rupees one lakh the suit should be filed
before the Subordinate Judge's Court (Sub Court),
 Appeals from the decisions of the Sub Court is filed before the
District Court.
 Decisions of the District Court can be challenged by appeal before
the High Court and then 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
up to a specified amount 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 a specified amount
 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.
 Bombay, Calcutta and Madras were the Chartered High Courts set
up as a result of the enactment of the Indian High Courts Act 1861
by the British Parliament, these three along with the Delhi High
Court have Original Civil Jurisdiction which will enable them to
hear civil cases also
 Fundamentals of Indian Legal System
 Supreme Court: The Supreme Court is the highest court in the
country and has original, appellate and advisory jurisdiction.
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 Court’s 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 conflict, law made by the Parliament
will prevail over that of the State legislature
Fundamentals of Indian Legal System

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