Law
is basically recognized rules of conduct. These rules come into being from
various sources and in different ways. In the Indian legal system, the rule of
conduct comes from various sources including the religious diktats, customs,
legislations; judicial and quasi judicial.
Salient
Features of the Indian Legal System:-
1.
A constitution guaranteeing the fundamental rights which override the entire
law;
2. A
federal polity, thereby making the two classes of legislation- the Central and
the State- with their respective powers demarcated in the constitution;
3. The
recognition of the precedent or case law as a source of law.
4. The
existence of the comprehensive codes on the various subjects of the lawyer’s law;
such as the procedure, contracts, property, succession, crimes, commercial law,
evidence, etc.
5. The
adversary system of the procedure, that is, the judge does not take active part
in the trial; and
6. The
rule of law, preventive exercise of the arbitrary power without the express
legal authority.
The
Major sources of Law:-
The
Indian law is derived from the three main sources:-
a. The
Legislation, including the delegated legislation;
b. The
case laws or the precedents, that is, the pronouncements of various courts;
and
c. The
customary law.
The
Legislations:-
The two main
legislative bodies in India are:
1.
The Parliament, comprising the Lok Sabha and the Rajya Sabha.
2. The
State legislatures comprising the legislative assembly and also the legislative
council in some states.
The
Parliament makes laws for the whole country on the subjects that are enumerated
in the Union List contained in the seventh schedule of the Constitution. The
State legislatures make the laws for the respective states on the subjects that
are enumerated in the State list also contained in the said Seventh schedule.
On certain subjects enumerated in the Concurrent list, both the Parliament and
the state legislatures can make the laws. In such cases, the Parliamentary
legislation generally overrides the state legislation.
The
Acts and the Ordinances:
A
bill passed by both the Houses of the Parliament becomes an act when assented
by the President. Similarly the bill passed by the State Legislature becomes an
act when assented by the Governor of the State. An ordinance is promulgated by
the President for the Union (and the Governor for the State) when the
circumstances requires the immediate action and the Parliament (or the State
legislature) is not in session. An ordinance is, however, a temporary law and
it must be replaced by an act of the Parliament (or state legislature, as the
case may be) within the six weeks of the commencement of the session when the
Parliament or the state legislature meets next. If an ordinance can not be
replaced by an act then its validity expires and it has to be repromulgated.
The
Subordinate Legislation:
Almost
every act empowers an appropriate govt or authority to make the rules or orders
to carry out the purpose of the act. These are called the delegated
legislation. These are also known as the subordinate legislation. The reason
behind the delegation of the rule making power is that the legislature can not
foresee all the situations, or may not have time to provide for all the details,
or may not possess the requisite expertise for setting out technical matters. A
delegated legislation may be in the form of the rules, regulations, orders,
notifications, schemes, by laws, etc. A delegated legislation or a
subordinate legislation can not be inconsistent with the act under which it is
made (or the present law). A delegated legislation is generally required to be
placed before the Parliament or the State legislature, as the case may
be, when it meets the next.
The
Case laws:-
In
India the doctrine of the precedent is followed. A precedent is a decided case
used as an example to justify a judgment in the subsequent cases of the same
type. Accordingly when a H C or a S C decides a case, it is binding not only on
the parties to the proceeding, but also on all the lower courts for the future
and the pending litigation on the same issue.
The
applicability of the Supreme Court rulings:
A
judgment of the SC is binding on all the courts and authorities in India. A SC
ruling can be altered by a judgment of a larger bench of the SC or by modifying
the legislation by the competent legislature.
The
applicability of the High Court rulings:
A
judgment of a High Court is binding on all the civil courts in that state, even
if the civil judge views differently on that issue. However, a judgment of a HC
is not binding on the HC and the lower courts in other states. The judgments of
the HC of the other states have only the persuasive guidance but no binding
authority. A HC judgment may be:
a. Overruled by the SC;
b. Overruled by a larger bench of the same HC;
c. Modified
by a legislation of the competent legislature. If the different HC view
differently on a point of law it can be settled either by a SC ruling or by a
suitable modification in the legislation. Till then, the ruling of each HC
shall be a good law in the respective state.
The
Advantages of the Case laws:
The
legislations can not cover all the probable questions that may arise. Besides,
the various provisions of a legislation may require to be elaborated or
interpreted. The case laws fills these gaps.
The
Customary Law:-
Certain
customs or usage have been recognised as and treated at par with the laws. A
custom means a practice which has become well rooted and is universal. For
example, in family law, the customs are recognised as a law and in certain
cases even modify the general rule of the law otherwise applicable. Similarly,
in certain commercial transactions, business usage can take place of the law.
The
Branches of the Law:-
The
main branches of the law are:
a. The
Public laws - concerning with the matters that affect the public as a
whole. These are the constitutional law, the administrative law, taxation law,
and the criminal law.
b. The
Private laws - concerning with the private matters. These are the laws
of the contracts, the law of the torts, laws relating to the property,
inheritance, family, etc.
c. The
Civil law - concerning with the remedies other than the punishment.
d. The
Substantive law - concerning with the legal rights and duties.
e. The
Adjective law - dealing with the process of the enforcement.
THE
INDIAN JUDICIARY
The
Indian judiciary can be broadly divided into:
1. The
Higher judiciary consisting of the Supreme court and the High courts, and
2. The
Lower judiciary consisting of the ordinary civil and the criminal courts and
certain special courts.
The
Governing Law:-
The
higher judiciary consisting of the SC and the HC, is
established
under or is regulated by the Constitution. However, certain HC, for example,
the HC of Bombay, the HC of Madras, the HC of Calcutta and the HC of Allahabad
were constituted under the pre constitution enactments. These HC assume their
jurisdiction, powers and authority under those enactments even today, to the
extent that the same are not contrary to the constitution. The SC is entirely
the creature of the constitution and also assumes the jurisdiction conferred on
it under the Parliamentary legislation. As regards the lower judiciary, the
Civil courts are constituted mostly under the civil courts act in force in each
state whereas the criminal courts are constituted under the CrPC, 1973. These
courts exercise the jurisdiction in the pursuance of powers conferred on them
under a host of the Central and the State laws.
The
Functions of the Supreme Court:-
The
Supreme Court functions as:
1. A
federal court, deciding the disputes between the Union and the States, or the
States inter se,
2. A
constitutional court empowered-
a.
To issue the writs, orders, and the directions for the enforcement of the
fundamental rights, under the art. 32 of the constitution, and
b.
To exercise the appellate jurisdiction under the art. 131 of the constitution,
in the judgments of the H C involving a question of the interpretation of the
constitution,
c.
The highest appellate court in India in the civil, criminal and taxation
matters,
d.
A special appellate court, when the S C grants special leave petition, of the
appeal,
e.
An advisory court, on the matters referred to it by the President,
f.
A court having the miscellaneous jurisdiction, for example, jurisdiction to
decide the election petitions in the Presidential and Vice presidential
elections.
The
Functions of the High Courts:-
The
High courts have been conferred with the wide and multi farious jurisdiction,
in order to ensure the uniformity on the questions of law within the State and
to correct the serious injustices in the proceedings of the lower courts in the
State. The H C functions as:
1. The
highest appellate courts in the state in both the civil and the criminal
matters,
2. The
court of reference in respect of the taxation matters, and matters involving
the validity of an act,
3. The
court empowered to issue the writs for the enforcement of the fundamental
rights, under the art. 226 of the Indian constitution.
4. The
court of confirmation in all cases where the sessions court has passed a
sentence of death,
5. A
court competent to decide the election petitions,
6. A
court having the miscellaneous jurisdiction under the special laws.
Besides,
the H C exercises the power of the superintendence over all the courts and the
judicial authorities in the state.
The
Civil Courts:-
A
civil court exercises the jurisdiction over a suit or other proceedings with
reference to the following:-
1.
The Local limits: the local limits of a
court’s jurisdiction are stated in the notification issued under the state
civil court act constituting that court. The local limits are determined with
reference to the sections 16 – 20 of the C P C, 1908.
2. The
pecuniary limits: the pecuniary limits of a civil court is also stated
in the notification as aforesaid, and are determined with reference to the
valuation rules under the suits valuation act.
3. The
subject matter: A court shall not entertain a suit or proceeding which
is excluded from the particular court. for example, the matrimonial disputes
can be redressed only in a district court or other notified court or the Family
court, wherever established.
Besides,
before exercising the jurisdiction over a suit, the court must ensure that the
procedural pre requisites have been complied with.
The
Criminal Courts:-
The
Sessions court is the highest criminal court of the original jurisdiction. A
state is divided into several divisions and there is a Sessions court for each
sub divisions. A sessions court can try any offence and impose any sentence
authorised by the law for a particular offence. However, the death sentence
imposed by the sessions court must be confirmed by the H C in that state.
Generally, a sessions court does not entertain a criminal case directly, but
only on a committal made to it by the competent magistrate. However, a Sessions
court can entertain directly the suits relating to the defamation of the high
dignitaries of the Govt. The magistrate of the 1st class and
the 2nd class can entertain the suits relating to the offences
listed in a Schedule under the Cr P C, 1973. A Metropolitan Magistrate can try
all the offences which can be tried by the 1st class
magistrate.
The
Systems of the Trial:-
There
are two systems of the trial:
1. The
Adversary system:-
This
system is based upon the principle that truth will come out by a presentation
of their cases by the various adversaries. The judge does not take an active
part in the trial and the most of the questioning is done by the councils for
the opposite parties.
2. The
Inquisitorial system:-
In
this system, the judge plays a dominant role in the conduct of the trail and
examination of the witnesses. It is based in the principle that it is the
judge’s duty to elicit the truth, as far as possible, by his own initiative.
India follows the
adversary system of the trial.
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