INTRODUCTION
“To
devil among the laws of India is like bathing in the holy waters of Triveni.”
The legal system of a country is part of its social
system and reflects the social, political, economic and cultural
characteristics of the society. It is therefore, difficult to understand the
legal system outside the socio cultural milieu in which it operates. In the
case of India the legal system is still alien to the majority of the Indian’s
whose legal culture is more indigenous and whose contact with the formal legal
system (the imported British Model) is marginal if not altogether non-existent.
The language, technicality and procedure of the inherited legal system are
indeed factors, which limit access to justify for the illiterate, impoverished
masses of our country. Nevertheless, the rights and benefits conferred by the
laws and constitution offer opportunity for those very people to enjoy the
fruits of a welfare democracy which the people of India have given unto
themselves on the 26th January,
1950. It is in this context familiarity with law and its processes become
essential to every Indian, rich or poor. Man or woman, young or old.
A level system consists of certain basic principles and
values (largely outlined by the constitution), a set of operational norms
including rights and duties of citizens spelt out in the laws- Central, State
and Local, institutional structures for enforcements of laws and a cadre of
legal personnel endowed with the responsibility of administering the system.
India is a federation of 29 states and 7 Union
Territories. The President is the head of the Union executive. He
acts on the advice of the Union cabinet headed by a prime minister who is
responsible to the parliament of India. The parliament is bicameral:
Council of States or Upper House whose main membership is elected by state
legislatures and the House of People or Lower House consisting of members
elected directly by the people in general elections. The democratic
system operates in a manner similar to the British system of parliamentary democracy.
A single integrated system of courts administers both union and state
laws. The common law system in India is a legacy of the British where the
doctrine of stare decisis [1]rules. The Supreme
Court of India, seated in New Delhi, is the highest court in the entire
judicial system. Each state, or a group of them, has a High Court, which
is also a court of record and exercises administrative control over the
subordinate judiciary. It, too, has the power to issue writs in exercise
of extraordinary jurisdiction and is the appellate court from decisions of the
lower courts in the state.
Each state is divided into districts where the
Court of District and Sessions Judge is the highest court. He has dual
role. As a District Judge, he adjudicates in civil disputes and as
Sessions Judge, he adjudicates criminal disputes. Below him are
Sub-Judges for civil cases and Magistrates for criminal cases. The Chief
Judicial Magistrate, in criminal matters, and Senior Sub-Judge, on the civil
side, with lower rungs of magistrates and sub-judges, constitute the district
level judiciary under the superintendence of the District Court. Thus,
there are four tiers of judiciary.
Other quasi-judicial tribunals (e.g., labor tribunal,
administrative tribunal) function to grant relief in labor disputes or decide
grievances of civil servants.
Mainly the components of the Indian Legal system are[2] :-
v
A legal system
consist of –
I.
Certain basic
principles and values, largely outlined by the constitution.
II.
A set of operational
norms including rights and duties of citizens spelt out in the laws.
III.
Institutional
structures for enforcement of laws.
IV.
A cadre of legal
personnel for administering the system.
1.1
HISTORICAL ASPECT
1.1.1 LAW AND LEGAL SYSTEM IN VEDIC PERIOD.
Law in India has evolved from religious prescription to
the current constitutional and legal system we have today, traversing
through secular legal systems and the common law[3].
India has a recorded legal history starting from the
Vedic ages and some sort of civil law system may have been in place during the
Bronze Age and the Indus Valley civilization. Law as a matter of religious
prescriptions and philosophical discourse has an illustrious history in India.
Emanating from the Vedas, the Upanishads and other religious texts, it was a
fertile field enriched by practitioners from different Hindu philosophical
schools and later by Jains and Buddhists.
Secular law in India varied widely from region to region
and from ruler to ruler. Court systems for civil and criminal matters were
essential features of many ruling dynasties of ancient India. Excellent secular
court systems existed under the Mauryas[4]and the Mughals[5] with the latter giving way to the current
common law system.
1.1.2. LEGAL SYSTEM IN ANCIENT INDIA.
India has the oldest judiciary in the world. No other
judicial system has a more ancient or exalted pedigree.[6]
British Henry Maine described the legal system of ancient India "as
an apparatus of cruel absurdities". An Anglo-Indian jurist made the
following remark about what he called “the oriental habits of life" of the
Indians before the British turned up in India: "It (British rule in India) is a record of experiments made by
foreign rulers to govern alien races in a strange land, to adapt European
institutions to Oriental habits of life, and to make definite laws supreme
amongst peoples who bad always associated government with arbitrary and
uncontrolled authority[7]." Alan Gledhill, a retired member
of the Indian Civil Service, wrote that when the British seized power in India, “there was a dearth of legal principles[8]."
These may be due to sheer ignorance, or imperialist
self-interest, or contempt for Indian culture and civilization which was a part
of the imperialist outlook which dominated British Jurists, historians, and
thinkers in the heyday of imperialism. But the effect of this miss representation,
which has few parallels in history, was to create a false picture of the Indian
judicial and legal system both in India and outside.
Indian jurisprudence was found on the rule of law, that
the King himself was subject to the law,that arbitrary power was unknown to
Indian political theory and jurisprudence and the kind’s right to govern was
subject to the fulfilment of duties the breach of which resulted in forfeiture of
kingship, the judges were independent
and subject only to the law, the ancient India had the highest standard of any
nation of antiquity as regards the ability, learning, integrity, impartiality,
and independence of the judiciary, and these standards have not been surpassed
till today, the Indian judiciary consisted of a hierarchy of judges with the
Court of the Chief Justice(Praadvivaka) at the top, each higher Court being
invested with the power to review the decision of the Courts below that
disputes were decided essentially in accordance with the same principles of
natural justice which govern the judicial process in the modern State today,
that the rules of procedure and evidence were similar to those followed today ,
that super natural modes of proof like the ordeal were discourage.
In criminal trials the accused could not be punished
unless his guilt was proved according to law that in civil cases the trial
consisted of four stages like any modern trial – plaint, reply, hearing and
decree, that such doctrines as res-judicata[9]
(Prang Nyaya) were familiar to Indian jurisprudence , that all trials, civil or
criminal, were heard by a bench of several judges and rarely by a judge sitting
singly, that the decrees of all courts except the King were subject to appeal
or review according to fixed principles ; that the fundamental duty of the
Court was to do justice "without favour or fear".
2. RULE OF LAW IN ANCIENT INDIA.
Was there a rule of law in ancient India? In the
Mahabharata, it was laid down ".A King who after having sworn that he
shall protect his subjects fails to protect them should be executed like a mad
dog." Also “The people should execute a king who does not protect them,
but deprives them of their property and assets and who takes no advice or guidance
from any one. Such a king is not a king but misfortune." These provisions indicate that sovereignty was
based on an implied social compact and if the King violated the traditional pact,
he forfeited his kingship.
Coming to the historical times of Mauryan Empire[10],Kautilya
describes the duties of a king in the Arth-shastra thus : "In the
happiness of his subjects lies the King’s happiness; in their welfare his welfare;
whatever pleases him he shall not consider as good, but whether pleases his people
he shall consider to good." The Principle enunciated by Kautilya was based
on a very ancient tradition which was already established in the age of the Ramayana[11].
Rama, the King of Ayodhya, was compelled to banish his queen, whom he loved and
in whose chastity he had complete faith, simply because his subjects
disapproved of his having taken back a wife who had spent a year in the house
of her abductor.
3. JUDICIARY
IN ANCIENT INDIA.
With this introductory warning, the endeavour to
describe the judicial system of ancient India According to the Artha-shastra of Kautilya, who is
generally recognised as the Prime Minister of the first Maurya Emperor (322-298
B.C.), the realm was divided into administrative units called
Sthaniya,Dronamukha, Khrvatika and Sangrahana (the ancient equivalents of the
modern districts, tehsilsandParganas). Sthaniya was a fortress established in
the centre of eight hundred villages, a dronamukha in the midst of 400
villages, a kharvatika in the midst of 200 villages and a sangrahana in the centre
of ten villages, Law courts were established in each sangrahana, and also at
the meeting places of districts(Janapadasandhishu).
The Court consisted of three jurists (Dhramastha)
and three ministers (Amatya).
This suggests the existence of circuit courts, for it
is hardly likely that three ministers were permanently posted in each district
of the realm. The great jurists, Manu, Yajn-valkya, Katyayana, Brihaspati and
others, and in later times commentators like VachaspatiMisra and others,
described it in the judicial system and legal procedure, which prevailed in
India from ancient times till the close of the Middle Ages.
3.1 HIERARCHY
OF COURTS IN
ANCIENT INDIA.
According to Brihaspati Smiriti, there was a hierarchy
of courts in Ancient India beginning with the family Courts and ending with the
King. The lowest was the family arbitrator. The next higher court was that of the
judge; the next of the Chief Justice who was called Praadivivaka, or adhyaksha;
and at the top wasthe King’s court. The jurisdiction of each was determined by
the importance of the dispute, the minor disputes being decided by the lowest
court and the most important by the king. The decision of each higher Court superseded
that of the court below.
According to VachasatiMisrap,
"The binding effect of the decisions of these tribunals, ending with that
of the king, is in the ascending order, and each following decision shall
prevail against the preceding one because of the higher degree of learning and
knowledge"[12]
It is noteworthy that the Indian judiciary today also
consists of a hierarchy of courts organized on a similar principle-the village
courts, the Munsif, the Civil Judge, the District Judge, the High Court, and
finally the Supreme Court which takes the place of the King’s Court. The
institution of family judges is noteworthy. The unit of society was the joint
family which might consist of four generations. Consequently, the number of the
member of a joint family at any given time could bevery large and it was
necessary to settle their disputes with firmness combined with sympathy and
tact.
It was also
desirable that disputes should be decided in the first instance by an
arbitrator within the family. Modern Japan has a somewhat similar system of
family Courts. The significance of the family courts is that the judicial
system had its roots in the social system which explains its success.
The King was
required to take the oath of impartiality, and decide cases without bias or attachment.
According to Katyayana: "The
king should enter the court-room modestly dressed, take his seat facing east,
and withan attentive mind hear the suits of his litigants. He should act under
the guidance of his Chief Justice (Praadvivaka), judges, ministers and the Brahman members of his council. A king
who dispenses justice in this manner and according to law resides in
heaven".
The code of conduct prescribed for the king when
acting as a judge was very strict and he was required to be free from all
"attachment or prejudice" Says Nerada: "If a king disposes of
law suits (Vyavaharan) in accordance
with law and is self-restrained (in court), in him the seven virtues meet like
seven flames in the fire"Narada enjoins that when the king occupies the
judgment seat (Dharmasanam), he must
be impartial to all beings, having taken the oath of the son of Vivasvan. (The
oath of Vivasvan is the oath of impartiality: the son of Vivasvan is Yama, the
god of death, who is impartial to all living beings).
4. LEGAL SYSTEM IN MEDIEVAL
PERIOD.
After the disintegration of the Harsha Empire a veil
of obscurity descends on the history of India which does not lift till the
Muslim invasion. The country was divided once more into small kingdoms. But
this did not result in any great change in the judicial system which had taken
roots during the preceding thousands of years. The standards and ideals of
justice were maintained in each kingdom, in spite of political divisions, the
unity of civilization was preserved, and the fundamental principles of law
andprocedure were applied throughout the country. This is indicated by the fact
that the great commentaries on law like Mitakshara and ShukarneetiSar were
written during this period and enjoyed an all-India authority. But the
establishment of the Muslim rule in India opened a new chapter in our judicial
history. The Muslim conquerors brought with them a new religion, a new
civilization, and a new social system. This could not but have a profound
effect on the judicial system.
The ideal of justice under Islam was one of the
highest in the middle ages. He said in the Quran,[13]
"Justice is the balance of God upon earth in which things when weighed are
not by a particle less or more. He appointed the balance that he should not
transgress in respect to the balance, wherefore observe a just weight and
diminish not the balance". He is further reported to have said that to God
a moment spent in the dispensation of justice is better than the devotion of
the man who keeps fast every day and says prayer every night for years. Thus
the administration of justice was regarded by the Muslim kings as a religious
duty.
The Muslim kings in India bought with them high
ideals. It is reported by Badaoni that during the reign of Sultan Muhammad
Tughlaq the Qadi dismissed a libel
suit filed by the Kind himself against Shaikhzada Jami, but no harm was done to
him. (This however did not prevent the Sultan fromexecuting the defendant
without a trial)[14].
Individual Sultans had very high ideals of justice.
According to Barani,
Balban regarded justice as the keystone of sovereignty "where in lay the
strength of the sovereign to wipe out the oppression"[15].
As a modern writers says, "The medival State in
India as else here throughout its existence had all the disadvantages of an autocracy-everything
was temporary, personal, and had no basic strength. The personal factor in the
administration had become so pronounced that a slight deviation of the head
from the path of duty produced concomitant variations in the whole ‘trunk’. If
the King was drunk ‘his Magistrates were seen drunk in public’. Justice in not
possible without security, and the Sultans of Indian ever felt secure.
Consequently, the democratic ideal of government preached by Islam was unsecure
in India.[16]
During the Sultanate, Islamic standards of Justice did not take root in India
as an established tradition, unlike the judicial traditions of ancient India
which had struck deep roots in the course of several thousand years and could
not be uprooted by political divisions.
Under the Mughal Empire the country had an efficient
system of government with the result that the system of justice took shape. The
unit of judicial administration was Qazi-an
office which was borrowed from the Caliphate. Every provincial capital had its Qazi and at the head of the judicial
administration was the Supreme Qazi
of the empire (Qazi-ul-quzat).
Moreover, every town and every village large enough to be classed as a Qasba
had its own Qazi. In theory, a Qazi had to be "a Muslim scholar of
blameless life, thoroughly conversant with the prescriptions of the sacred law[17].
According to the greatest historian of the Mughal
Empire, "the main defect of the Department of Law and Justice was that
there was no system, no organization of the law courts in a regular gradation
from the highest to the lowest, nor any proper distribution of courts in
proportion to the area to be served by them.The bulk of the litigation in the
country (excluding those decided by caste, elders or village Panchayats mostly
for the Hindus) naturally came up before the courts of Qazis or Sadars.[18]"
This view is not accepted by other writers.
According to Sircar, "all the Qazis of the Mughal period, with a few
honourable exceptions, were notorious for taking bribes. The Emperor was the
fountain source of justice. He held his court of justice every Wednesday and
decided a few case selected personally by him but he functioned not as an
original court but as the court of highest appeal. There is overwhelming
evidence that all the Emperors from Akbar to Aurangzeb took their judicial
function seriously and discharged their duties Jahangir made a great show of it
and his Golden Chain has become famous in history. The weakness of
Indo-Mohammedan Law, according to Jadunath Sircar, was that all its three
sources were outside India.
A relic of the usurpation of the Emperors’ power is
the name Fauzdari given to criminal trials even today. After the conquest of
Bengal by the British the process of replacement of the Mughal system of
justice by the British began. But it took a long time. In fact, The Sadre Diwani
Adalat continued to function till it was replaced by the High Courts. The
Mughal judicial system has left its imprint on the present system, and a good
part of our legal terminology is borrowed from it. Our civil courts of first
instance and called Munsifs, the plaintiff and the defendant are termed Muddai
and Muddaliya and scores of other legal terms remind us of the great days of
the Mughal Empire.
5. LAW AND LEGAL SYSTEM IN BRITISH PERIOD.
The common law system – a system of law based on recorded
judicial precedents- came to India with the British East India Company.
The company was granted charter by King George I in 1726 to establish “Mayor’s
Courts” in Madras, Bombay and Calcutta (now Chennai, Mumbai and Kolkata
respectively). Judicial functions of the company expanded substantially after
its victory in Battle of Plassey and by 1772 company’s courts expanded out from
the three major cities. In the process, the company slowly replaced the
existing Mughal legal system in those parts.
Following the First War of Independence in 1857,[19] the control of company
territories in India passed to the British Crown. Being part of the empire saw
the next big shift in the Indian legal system. Supreme courts were established replacing
the existing many oral courts. These courts were converted to the first High
Courts through letters of patents authorized by the Indian High Courts Act
passed by the British parliament in 1862. Superintendence of lower courts and
enrolment of law practitioners were deputed to the respective high courts.
During the Raj, the Privy Council acted as the highest court of appeal. Cases
before the council were adjudicated by law lords of the House of Lords. The
state sued and was sued in the name of the British sovereign in her capacity as
Empress of India.
During the shift from Mughal legal system, the advocates
under that regimen, “vakils”, too
followed suit, though they mostly continued their earlier role as client
representatives. The doors of the newly created Supreme Courts were barred to
Indian practitioners as right of audience was limited to members of English,
Irish and Scottish professional bodies. Subsequent rules and statutes
culminating in the Legal Practitioners Act of 1846 which opened up the
profession regardless of nationality or religion.
Coding of law also began in earnest with the forming of
the first Law Commission. Under the stewardship of its chairman, Thomas
Babington Macaulay, the Indian Penal Code was drafted, enacted and brought into
force by 1862. The Code of Criminal Procedure was also drafted by the same
commission. Host of other statutes and codes like Evidence Act (1872) and Contracts Act (1872).
6. LAW AND LEGAL SYSTEM AFTER INDEPENDENCE.
At the dawn of independence, the parliament of
independent India was the forge where a document that will guide the young
nation was being crafted. It will fall on the keen legal mind of B. R. Ambedkar[20] to formulate a
constitution for the newly independent nation. The Indian Bar had a role in the
Independence movement that can hardly be overstated – that the tallest leaders
of the movement across the political spectrum were lawyers is ample proof. The
new nation saw its first leader in Jawaharlal Nehru, and a paternal figure in
M. K. Gandhi, both exemplary lawyers. Perhaps it is the consequent
understanding of law and its relation to society that prompted the founding
fathers to devote the energy required to form a Constitution of unprecedented
magnitude in both scope and length.[21]
The Constitution of India is the guiding light in all
matters executive, legislative and judicial in the country. It is extensive and
aims to be sensitive. The Constitution turned the direction of system
originally introduced for perpetuation of colonial and imperial interests in
India, firmly in the direction of social welfare. The Constitution explicitly
and through judicial interpretation seeks to empower the weakest members of the
society.
India has an organic law as consequence of common law
system. Through judicial pronouncements and legislative action, this has been
fine-tuned for Indian conditions. The Indian legal system’s move towards a
social justice paradigm, though undertook independently, can be seen to mirror
the changes in other territories with common law system. From an artifice of
the colonial masters, the Indian legal system has evolved as an essential
ingredient of the world’s largest democracy and a crucial front in the battle
to secure constitutional rights for every citizen.[22]
7. THE CONSTITUTION: THE FUNDAMENTAL LAW OF THE LAND.
The constitution of a country is variously describing
depending upon the nature of the polity and assumes the character of a federal
(several independent units jointed together) or unitary form of Government.
India is declared to be a Socialist, Secular, Democratic, Republic. It is said
to have a quasi-federal structure. The Constitution of India represents the
collective will more than 1000 million Indians and, as such, the reservoir of
enormous power. It describes the methods by which this power conferred on the
State is to be exercised for the benefit of the people. In other words, it is a
political document, which distributes State power amongst different organs
(Central and State Governments.
Legislative, Executive and Judicial wings of each
Government) and regulates its exercise in its incidence on the people. The form
of government is democratic and republican and the method is parliamentary
though adult franchise. The goals are spelt out in the Preamble itself. To
achieve this goal of dignity of the individual with justice, liberty and
equality, the Constitution guarantees certain Fundamental Rights and provides
for its easy enforcement through the High Courts and the Supreme Court. These
basic Human Rights are expressly laid down in Articles 14 to 30 of the Indian
Constitution.[23]
Further, towards achieving the goals set out in the
Preamble,[24]
the Constitution gives certain Directives to the State to follow in its
policies and programs. These Principles of State Policy have been recognized to
be as sacrosanct as the Fundamental Rights. In other words, they together
constitute a reference point for State action in every sphere. The Constitution
envisages a unique place for the judiciary in the country. Apart from
overseeing the exercise of the State power by the Executive and the
Legislatures of the State and the Central Governments, the Supreme Court and
the High Courts are charged with the responsibility of effective protecting the
citizen’s rights through its writ jurisdiction. This offers a cheap and
expeditious remedy to the citizen to enforce the guaranteed rights. The Supreme
Court recently liberalized the rules so as to enable poor and illiterate
citizens to have easy access to courts for enforcing their basic rights.
The Rule of Law is supreme and the independence of
judiciary is a living reality. These form the bulwark of democracy and compel
everyone to abide by the law in his/her own interest. Constitutional government
and the principles involved in it ought to be understood and subscribed by
every Indian if we are to succeed in our declared goals.
8. LAWS: CIVIL AND CRIMINAL.
The laws of the country are too numerous, varied and
complex; they are bound to be as large as life itself which is increasingly
becoming complex in every sphere. In a welfare state like ours, laws are all
the more so because they are expected to regulate a variety of social and
economic activities so as to sub serve the common good. Inspired by the
Constitution, Parliament, State Legislatures and Local Councils make and unmake
the laws day in and day out as the occasion demands. Courts interpret them in
specific fact situations and, in the process, extend the scope and application
of the laws. The common man may get lost in the maze of legislations coming
from all sides and contribute to its complexity by creating his own laws
through contracts and agreements with others he has to deal with. On the basis
of the remedies sought and the procedure followed, all laws can be grouped into
two categories, namely, Civil laws and Criminal laws. Broadly speaking criminal
law is concerned with against the community as a whole, while civil law is
related to the rights, duties and obligations of individual members of the
community between themselves.
Civil laws
includes a number of aspects which may be grouped under six or seven major
headings such as family law, the law of property, the law of tort, the law of
contracts, the law relating to commerce and business, labour law, law of
taxation etc.
Criminal law is concerned with public wrongs or wrongs
against the order and well being of the society in general. The persons guilty
of such wrongs are prosecuted and punished by the state. These wrongs are
specified and are defined in the Penal Code and few other special and local
laws. One important aspect is that criminal laws insist (apart from a few
exceptional offences) on a particular intent of state of mind as a necessary
ingredient of a criminal offence. It also recognizes degrees of criminality and
gradations of crime. Ignorance of law is never taken as an excuse.
Certain situations
where guilty intention could not have been entertained such as infancy,
insanity, mistake of fact etc., they are recognized as defenses to criminal
responsibility. Offences are classified on the basis of the objective or
otherwise. Thus there are crimes against the human body, property, and reputation
of the individual, against the state or against public rights. On a procedural
basis they are classified as cognizable[25] and non-cognizable[26] (cognizable are those in
which the police can investigate or arrest persons without judicial warrant),
bailable[27]
and non-bailable, compoundable or otherwise.
9. PROCEDURAL LAWS: CIVIL AND CRIMINAL.
Most proceedings in the Supreme Court and the High Courts
are governed by Rules of Procedure made by the Courts themselves under powers
given by the statute. The Civil and Criminal Procedure Codes and Evidence Act
do apply to judicial proceedings in these courts as well. The writ jurisdiction
under Articles 32 and 226 can be invoked, whenever a person is deprived of
his/her fundamental rights. In such situations the citizens can approach these
courts even through a letter sent by ordinary post as the Supreme Court has
declared that procedure should not be allowed to come in the way of
dispensation of justice.
For the enforcement of civil rights and obligations a suit
before a civil court is usually instituted. The procedures for trial and appeal
including execution of decrees and orders as laid down in the Code of Civil Procedure are followed. Valuation of suits for
purposes of jurisdiction is made according to the Suits Valuation Act. The amount
of court fees to be paid on plaints and appeals is determined by the Court Fees Act. The Limitation Act prescribes the periods of limitation
within which suits can be filed. The Evidence
Act regulates the relevancy, admissibility
and probative value of evidence led in courts, civil and criminal.
The trial is in the nature of adversary proceedings where
two parties oppose each other in a suit or action between parties. The
procedure commences with ‘pleadings’[28], which set out the
precise question in dispute or the cause of action. The opposite party (the
defendant) may file a written statement to admit or deny the allegations in the
plaint. The parties may supplement the pleadings by makings admissions of fact,
answers and interrogatories, oral statements before the court and by admissions
and denials of documents filed by them. The ‘hearing’ of a suit
commences with the serving of a copy of the plaint to the defendant. The trial
involves recording of evidence of witnesses for deposing in the court. Because
civil proceedings are private matters, they can at any time be abandoned or
compromised and, in fact, in a number of cases they are settled before trial.
Judgments are enforceable through the authority of the court. Refusal to obey a
judgment can lead to penal consequences. Many decrees are open to appeal in
higher courts within the specified period.
Criminal proceedings are governed by the provisions of
the Code of Civil Procedure, the purpose of which is to determine the accused
is guilty of the offence charged and, if so, to decide the punishment to be
awarded.
It is designed to give every accused a ‘fair trial’
consistent with the constitutional commitment to individual liberty and
freedom. Criminal proceedings involve four major stages, namely, investigations, prosecution, trial
and disposition. Crimes being wrongs against society, the state undertakes
the prosecution on behalf of the victim. Whenever arrests are made they are
obliged to produce the arrested person before the nearest Magistrate within 24
hours. They are not to use ‘third degree methods’, in interrogation and
confession given to police are not admissible as evidence in court. In all bailable
cases they are bound to release the person on bail. The arrest person has a
right to seek the aid of a lawyer of his choice and he cannot be compelled to
give evidence against himself. Under our law every accused person is presumed
innocent and the prosecution (the State) has to prove the guilt beyond a
reasonable doubt. If there is any doubt in the evidence of the prosecution, the
benefit of doubt is given to the accused and he is acquitted.
The defendant (or
his lawyer) has the right to cross-examine every prosecution witness while he
cannot himself be questioned unless he consents to be sworn as a witness in his
own defense. In the case of indigent persons there is proviso for legal aid at
State expense. If at the end of trial, the Judge finds him guilty, he has a
right to be heard on the determination of sentence. The emphasis is modern
criminal justice being reformation and rehabilitation there is enough scope for
a deserving convict to get correctional treatment as part of sentence. Apart
from the civil and criminal proceedings prescribed in the respective codes,
there are a variety of adjudicative procedures followed in tribunals,
quasi-judicial administrative agencies, arbitration councils, nyaya panchayats etc., where private
disputes are processed and settled through informal procedures. They are found
be cheap, expeditious and less cumbersome in terms of adjudication. Legal Aid
has now assumed an important place in judicial procedure in our country.
10. THE JUDICIAL SYSTEM TODAY
A very brief description of our judicial system today.
Barring the Supreme Court, India has no federal judiciary like the United
States. Each State has its own judiciary, which administers both Unionand State
laws. As during the Maurya Empire, each district in the State has its hierarchy
of judicial officers- Munsif, Civil Judge, Civil and Sessions Judge- with the District
Judge as its head. I shall not givea detailed description of the organization
of our state judiciary.
The
Constitution of India created for the first time in Indian history a Supreme
Court for the whole of India. The establishment of this Court with an all-India
jurisdiction is likely to accelerate the development of a common law extending
over every nook and corner of the republic. Article 141 enjoins "that the
law declared by the Supreme Court shall be binding on all Courts in India.”[29]
It gives the opinions of our Supreme Court a constitutional force. The judicial
process can be an effective weapon for forging national integration. In England
the law Courts were the most effect weapon for creating a common law for the English
people. There can be no doubt that the Supreme Court by its decisions and
opinions, with the authority of Article 141 behind them, shall accelerate the
process of establishing a common law for the whole of India.
11. COURTS OF LAW
Courts are institutions wherein disputes are adjudicated
and justice administered. They are created by Statutes and enjoy such powers
and jurisdiction, which the Statutes confer. The Constitution itself provides
for the Supreme Court and the High Court in each State at the apex of the
judicial system and confers original and appellate jurisdiction on them
primarily to resolve disputes between union and the State, State and State,
State and the citizen and in limited cases appeals arising out of private
disputes involving substantial questions of law. This higher judiciary is named
as the Union Judiciary and appointments to it are made by the President of the
Union on the advice of the Council of Ministers. Citizens can directly approach
the High Courts or the Supreme Court to seek redress for the violation of
Fundamental Rights.
These courts have
a supervisory function over the subordinate courts (State Judiciary) which are
set up by each State according to its requirements under the Civil Procedure Code,
Criminal Procedure Code orother State laws, The High Courts and Supreme Court
enjoy civil and criminal jurisdiction apart from the writ jurisdiction.
The State judiciary under the High Court is organized in
a hierarchy on the civil and criminal sides based on their jurisdiction,
territorial or monetary. On the criminal side, the Criminal procedure Code
provides for the magistrates; Courts (First or Second Class depending on the
extent of powers for punishment) and above them the Sessions Courts, usually
one in each District.
On the civil side, the civil Procedure Code provides for
the Munsiffs’ Court (with limited pecuniary jurisdiction). The Sub-Divisional
Court and the district court each will vary pecuniary and territorial
jurisdiction. There can be Special Courts
set up for specific purposes and also Administrative and Revenue Tribunals to
adjudicate upon specific categories of disputes. Thus there are Motor Vehicles
Compensation Tribunals, Sales Tax Tribunals, Election Commission,[30] land Tribunals etc., all of which are judicial bodies adjudicating
disputes in the areas assigned to them[31]. Appeals from these
courts and tribunals usually lie to the high Courts and, in exceptional cases,
a second appeal to the Supreme Court. Administration of justice requires the
co-operation not only of the parties and the judges but also of offices of
court that include the Advocates, the court staff and the Para-legal personnel
who assist the lawyers and judges.
12. JUDGES.
Judicial
officer appointed or elected to hear and decide matters relating to law.
Selected from among the practicing lawyers, a judge, once appointed, may not be
removed by the government except by a resolution adopted by the both houses of
parliament and assented-to by the head of state.All judicial officers from the
Supreme Court Judge to the Munsiff in a small taluka are independent of both
the legislature and the executive. They are free to administer law without fear
or favor and they cannot be interfered with by anyone including the top
functionary of the Government. They have the power to punish those who commit
contempt of court or disobey their legitimate orders. The President, acting on
the advice of the Cabinet and the Chief Justice of India, appoints the judges
of the Supreme Court and the High Court. The Governor of the State appoints the
judicial Officers of the State similarly on the advice of the State High
Court/Government. Their salaries and service conditions from service requires a
special procedure and the control of their judicial functions vest on the
higher judiciary.
13. LAWYERS AND THE BAR.
Lawyers are the key functionaries assisting the judges in
the administration of justice. They are officers of court and are constituted
into an independent profession under an Act of parliament. (The Advocates Act, 1961). No other person may practice before the
courts. Without the expert assistance of lawyers on either side of a dispute,
judges will find it difficult to find the truth on disputed fats in issue and
interpret the law applicable to varied situations. That is why the legal
profession is often referred to as a noble and a learned profession.
To briefly put it, this is how our legal system
functions. It is our responsibility to know the legal system because society,
individual and various laws are inter-related to each other. It is a vicious
circle. A common man should have an idea of what is the system in which we are
functioning (though malfunctioning) and on what lines does it functions? Though
we might have different opinions, i.e., whether our system is good or bad, is
it functioning well or not, is it able to give justice to the poor and the
needy or not? Are some basic questions we might have? But the object here is to
create awareness among the masses who do not know our structure of Indian legal
system at all, so are not able to get any remedy also.
14. CONCLUSION.
‘Law
‘defines the political organization and structure of society,provides a scheme
of individual relationship within it and contributes to the stability of
society by offering an objective mechanism for the resolution of disputes and
conflicts within the community. All extensive human societies possess law in
some form or other. ‘Legal System’ is the totality of laws of a state or
community.
The
Legal System of a country is part of its social system and reflects the social,
political, economic, and cultural characteristics of that society. It is
therefore difficult to understand that legal system outside the socio-cultural
milieu in which it operates. The legal system based on British model (formal
/inherited) is full of technicalities and procedures, and this makes the system
still foreign to the majority of Indians (whose legal culture is more indigenous)
and limits access to justice for poor and illiterate people. Nevertheless, the
rights and benefits conferred by the laws and the constitution offer the
opportunity for those very people to enjoy the fruits of a welfare
democracy. Thus, every Indian should be
familiar with law and its procedures.
[2]Madhavamenon N.R., “Our legal System”, Legal Aid Newsletter,
November 1982.
[3]Paranjape .N. V. ,”Studies InJurisprudence And Legal Theory”,Central
Law Agency, Allahabad 2013, p . 229.
[6]Sen
Priyanath, “General Principles of Hindu Jurisprudence”, University of Culcutta,
Culutta 1980.
[7]Cowell,” History of the Constitution of the Courts
and Legislative Authorities in India”, 1872, p-3.
[8]Gledhill Alan ,”
The Republic of India”, p.147.
[11]A Hindu Epic known for the teachings of Lord“RAMA”.
[12]SANSKRIT
SLOKA.
[13]Among
oneof the four books mentioned in Quran which are –Tora, Gaboor, Engle, Quran.
[14]Badaoni :Muntakhab-ut-Tawarikh,
quoted by M.B.Ahmad in the,“administration
of Justice in the Medieval India”, p- 278.
[19]Mangal
Pandey was the main who is known for the raising of revolt against Britishers.
[20]Father
of Indian Constitution.
[21]Minattur
Joseph,”Indian Legal System”,IndianLaw
Institute, 2nd edition 2006 ,pp22-23.
[22]
Singh P. Mahendra, “V.N.Shukla’s
Constitution Of India”, Eastern Book Company , 11th Edition 2008 ,
Articles 5-10, pp13-22.
[23]Ibid
p-23-341.
[24]Also
known as mini constitution of Indian
Constitution.
[25]
Section 2(c), The Code of Criminal Procedure, 1973.
[26]
Section 2(l), Cr.P.C.
[28]
Section 2(i), Cr.P.C.
[31]Pandey
.J.N., “The Constitutional Law Of India”, Central law Agency,Allahabada, 50th Edition
2013, p-551.
[32]
Jain K. Ashok, “Indian Legal System
“Ascent Publications”, Delhi 2012, p-1.
Does Indian Law depends on Indian Politics or Indian Politics depends upon Indian Law?
ReplyDeleteAccording to your first line:-
(The legal system of a country is part of its social system and reflects the social, political, economic and cultural characteristics of the society)
NO one is above the law it is the law which decides how the Indian democracy is going to work although we need some reforms.hope my new article will answer much of your question sir
ReplyDelete