Indian Legal System An Introduction By Talwant Singh DHJS Addl. Distt. & Sessions Judge, Delhi (India) [email protected].

Indian Legal System Indian Legal System An IntroductionAn Introduction

ByByTalwant Singh DHJSTalwant Singh DHJS

Addl. Distt. & Sessions Judge, Addl. Distt. & Sessions Judge, Delhi (India)Delhi (India)

[email protected]@gmail.com

Indian Legal SystemIndian Legal System

• Indian law refers to the system of law Indian law refers to the system of law which operates in India. which operates in India.

• It is largely based on English common It is largely based on English common law.law.

• Various Acts introduced by the British Various Acts introduced by the British are still in effect in modified form today. are still in effect in modified form today.

• Much of contemporary Indian law shows Much of contemporary Indian law shows substantial European and American substantial European and American influence.influence.

History of Indian lawHistory of Indian law

• Ancient India represented a distinct Ancient India represented a distinct tradition of lawtradition of law..

• India had an historically independent India had an historically independent school of legal theory and practice.school of legal theory and practice.

• The The ArthashastraArthashastra, dating from 400 , dating from 400 BC, and the BC, and the ManusmritiManusmriti, from 100 , from 100 AD, were influential treatises in IndiaAD, were influential treatises in India..

• Manu's central philosophy was Manu's central philosophy was tolerance and pluralism, and was tolerance and pluralism, and was cited across Southeast Asia. cited across Southeast Asia.

Source of LawSource of Law• Primary Source:Primary Source:

a. a. The primary source of law is in The primary source of law is in the enactments passed by the the enactments passed by the Parliament or the State Legislatures.Parliament or the State Legislatures.

b.b. The President and the Governor The President and the Governor have limited powers to issue have limited powers to issue ordinances.ordinances.

c. These ordinances lapse six weeks c. These ordinances lapse six weeks from the re-assembly of the from the re-assembly of the Parliament or the State Legislature.Parliament or the State Legislature.

Source of Law Source of Law Cont.Cont.

• Secondary Source:Secondary Source:

a. a. SSecondary source of law is the econdary source of law is the judgments of the Supreme Court, judgments of the Supreme Court, High Courts and some of the High Courts and some of the specialised Tribunals.specialised Tribunals.

b. b. The Constitution provides that the The Constitution provides that the law declared by the Supreme Court law declared by the Supreme Court shall be binding on all courts within shall be binding on all courts within India.India.

Constitution of IndiaConstitution of India• The Constitution declares India to be The Constitution declares India to be

a sovereign socialist democratic a sovereign socialist democratic republic, assuring its citizens of republic, assuring its citizens of justice, equality, and liberty.justice, equality, and liberty.

• It is the longest written constitution of It is the longest written constitution of any independent nation in the world.any independent nation in the world.

• It contains 395 articles and 12 It contains 395 articles and 12 schedules, as well as numerous schedules, as well as numerous amendments, for a total of 1,17,369 amendments, for a total of 1,17,369 words in the English language words in the English language version. version.

Preamble of the Preamble of the ConstitutionConstitution

• We, the people of india, We, the people of india,

• Having solemnly resolved to constitute India Having solemnly resolved to constitute India into a sovereign socialist secular democratic into a sovereign socialist secular democratic republic and to secure to all its citizens: republic and to secure to all its citizens:

• Justice, social, economic and political; Justice, social, economic and political;

• Liberty of thought, expression, belief, faith and Liberty of thought, expression, belief, faith and worship; worship;

• Equality of status and of opportunity; Equality of status and of opportunity;

• And to promote among them all: And to promote among them all:

• Fraternity assuring the dignity of the individual Fraternity assuring the dignity of the individual and the unity and integrity of the nation.and the unity and integrity of the nation.

Fundamental RightsFundamental Rights • Equality before the law.Equality before the law.• Freedom from discrimination on grounds of Freedom from discrimination on grounds of

religion, race, caste, sex or place of birth.religion, race, caste, sex or place of birth.• EEquality of opportunity in matters of public quality of opportunity in matters of public

employment.employment.• FFreedom of speech and expression.reedom of speech and expression.• Right to assembly peacefully without arms.Right to assembly peacefully without arms.• PProtection against deprivation of life and rotection against deprivation of life and

personal liberty.personal liberty.• Freedom of conscience and the profession, Freedom of conscience and the profession,

practice and propagation of religion.practice and propagation of religion. • To move freely through India, to reside and To move freely through India, to reside and

settle in any part of India.settle in any part of India.

Fundamental DutiesFundamental Duties • Added to the Constitution in 1977.Added to the Constitution in 1977.

• TTo abide by the Constitution.o abide by the Constitution.

• Respect its ideals and institutions, the National Respect its ideals and institutions, the National Flag and the National Anthem.Flag and the National Anthem.

• To value and preserve the rich heritage of our To value and preserve the rich heritage of our composite culture.composite culture.

• TTo protect and improve the national o protect and improve the national environment including forests, lakes, rivers and environment including forests, lakes, rivers and wild life.wild life.

• To have compassion for living creations.To have compassion for living creations.

• To strive towards excellence in all spheres of To strive towards excellence in all spheres of individual and collective activity.individual and collective activity.

Criminal lawCriminal law

• Indian Penal Code (IPC) provides a penal Indian Penal Code (IPC) provides a penal code for all of India including Jammu and code for all of India including Jammu and Kashmir, where it was renamed the Ranbir Kashmir, where it was renamed the Ranbir Penal Code (RPC).Penal Code (RPC).

• The code applies to any offence committed The code applies to any offence committed by an Indian Citizen anywhere and on any by an Indian Citizen anywhere and on any Indian registered ship or aircraft.Indian registered ship or aircraft.

• Indian Penal Code came into force in 1862 Indian Penal Code came into force in 1862 (during the British Raj) and is regularly (during the British Raj) and is regularly amended, such as to include section 498-A. amended, such as to include section 498-A.

Civil Procedure CodeCivil Procedure Code• The Civil Procedure Code (C.P.C.) regulate the The Civil Procedure Code (C.P.C.) regulate the

functioning of Civil courts. functioning of Civil courts.

• It lays down the:It lays down the:

- Procedure of filing the civil case.- Procedure of filing the civil case.- Powers of court to pass various orders.- Powers of court to pass various orders.- Court fees and stamps involved in filing of case.- Court fees and stamps involved in filing of case.- Rights of the parties to case (plaintiff & - Rights of the parties to case (plaintiff & defendant) defendant) - Jurisdiction & parameters of civil courts - Jurisdiction & parameters of civil courts functioning.functioning.- Specific rules for proceedings of a case.- Specific rules for proceedings of a case.- Right of Appeals, review or reference. - Right of Appeals, review or reference.

Family lawFamily law

• Indian civil law is complex, with each Indian civil law is complex, with each religion having its own specific laws religion having its own specific laws which they adhere towhich they adhere to..

• After independence Indian laws have After independence Indian laws have adapted to the changing world. adapted to the changing world.

• The most recent being the Domestic The most recent being the Domestic Violence Act[2005].Violence Act[2005].

Industrial and Labour Industrial and Labour LawsLaws

• The most notable laws are as follows:The most notable laws are as follows:• Industrial Dispute Act, 1947Industrial Dispute Act, 1947• Wages Act, 1948Wages Act, 1948• Employees State Insurance Act, 1948Employees State Insurance Act, 1948• Employees Provident Fund and Miscellaneous Employees Provident Fund and Miscellaneous

Provisions Act, 1952Provisions Act, 1952• Beedi and Cigar workers Act, 1974Beedi and Cigar workers Act, 1974• Equal Remuneration Act, 1976Equal Remuneration Act, 1976• Contract Labour Act, 1970Contract Labour Act, 1970• Child Labour Act, 1986Child Labour Act, 1986• Bonded Labour System Act, 1976Bonded Labour System Act, 1976

The Employee’s Provident Funds Act, The Employee’s Provident Funds Act, 19521952

The Act shall apply to:The Act shall apply to:

• every establishment which is a every establishment which is a factory factory

• engaged in any industry mentioned engaged in any industry mentioned in schedule I of the Act and in schedule I of the Act and

• employing 20 or more persons or employing 20 or more persons or

• any other establishment employing any other establishment employing twenty or more persons or twenty or more persons or

• such other establishment as the such other establishment as the Central Government may notify. Central Government may notify.

Right To Information Act, Right To Information Act, 20032003

• The Right to Information emerges out of the The Right to Information emerges out of the umbrella of Right to Freedom of Speech and umbrella of Right to Freedom of Speech and Expression and Right to Life.Expression and Right to Life.

• Right to Information is also the centrifugal point Right to Information is also the centrifugal point for access to myriad other basic human rights for access to myriad other basic human rights such as environment, health, food, livelihood such as environment, health, food, livelihood etc.etc.

• The most direct transformation that the right to The most direct transformation that the right to information effects is in the governance system. information effects is in the governance system.

• From the perspective of citizenship, right to From the perspective of citizenship, right to information is the primary tool in the hands of information is the primary tool in the hands of the citizen. the citizen.

WritsWrits The Writs are issued by the Supreme The Writs are issued by the Supreme

Court under Article 32 and by the High Court under Article 32 and by the High Courts under Article 226 of the Courts under Article 226 of the Constitution of India. Constitution of India.

Types of Writs:Types of Writs:• Writ of prohibition Writ of prohibition • Writ of habeas corpus Writ of habeas corpus • Writ of certiorari Writ of certiorari • Writ of mandamus Writ of mandamus • Writ of quo warranto Writ of quo warranto

Indian Judicial SystemIndian Judicial System

• The three-tiered system of Indian judiciary The three-tiered system of Indian judiciary comprises of Supreme Court (New Delhi) comprises of Supreme Court (New Delhi) at its helm; at its helm;

• High Courts standing at the head of state High Courts standing at the head of state judicial system; judicial system;

• Followed by district and sessions courts in Followed by district and sessions courts in the judicial districts, into which the states the judicial districts, into which the states are divided. are divided.

• The lower rung of the system then The lower rung of the system then comprises of courts of civil (civil judges) & comprises of courts of civil (civil judges) & criminal (judicial/metropolitan criminal (judicial/metropolitan magistrates) jurisdiction. magistrates) jurisdiction.

The Supreme CourtThe Supreme Court

• On the 28th of January, 1950, the On the 28th of January, 1950, the Supreme Court came into being.Supreme Court came into being.

• The judges of the Supreme Court at the The judges of the Supreme Court at the time of inauguration were Chief Justice time of inauguration were Chief Justice Harilal J. Kania and Justices Saiyid Fazl Ali, Harilal J. Kania and Justices Saiyid Fazl Ali, M. Patanjali Sastri, Mehr Chand Mahajan, M. Patanjali Sastri, Mehr Chand Mahajan, Bijan Kumar Mukherjea and S. R. Das. Bijan Kumar Mukherjea and S. R. Das.

• The first Attorney General for India was The first Attorney General for India was Mr. M.C. Setalvad. Mr. M.C. Setalvad.

The Supreme CourtThe Supreme Court• The Supreme Court of India comprises the Chief The Supreme Court of India comprises the Chief

Justice and not more than 25 (30) other Judges Justice and not more than 25 (30) other Judges appointed by the President of India. appointed by the President of India.

• The proceedings of the Supreme Court are The proceedings of the Supreme Court are conducted in English only.conducted in English only.

• The Registry of the Supreme Court is headed by The Registry of the Supreme Court is headed by the Registrar General.the Registrar General.

• The Attorney General for India is appointed by The Attorney General for India is appointed by the President of India under Article 76 of the the President of India under Article 76 of the Constitution. Constitution.

• Three types of Advocates: Three types of Advocates: SENIOR ADVOCATES, SENIOR ADVOCATES, ADVOCATES-ON-RECORDADVOCATES-ON-RECORD & &OTHER OTHER ADVOCATESADVOCATES . .

The High CourtsThe High Courts• The High Courts are generally the last The High Courts are generally the last

court of regular appeal.court of regular appeal.• Besides, for invoking writ jurisdiction, the Besides, for invoking writ jurisdiction, the

High Courts can be approached for High Courts can be approached for enforcement of other rights. enforcement of other rights.

• It has the power to supervise the It has the power to supervise the subordinate courts falling within its subordinate courts falling within its territorial jurisdiction. territorial jurisdiction.

• The High Courts are Courts of Record. The High Courts are Courts of Record. • The High Courts also exercises original The High Courts also exercises original

jurisdiction under the Companies Act. jurisdiction under the Companies Act.

The High Courts The High Courts Cont…Cont…

• The High Court hears First Appeals from the The High Court hears First Appeals from the decisions of the District Courts.decisions of the District Courts.

• Section 100 of the Code of Civil Procedure Section 100 of the Code of Civil Procedure provides for a Second Appeal from Appellate provides for a Second Appeal from Appellate decrees.decrees.

• Under Section 115 of the Code, the High Court Under Section 115 of the Code, the High Court is conferred wish revisional jurisdiction. is conferred wish revisional jurisdiction.

• Under Article 227 of the Constitution also, the Under Article 227 of the Constitution also, the High Court in the exercise of its powers of High Court in the exercise of its powers of superintendence entertains revision petitions to superintendence entertains revision petitions to correct errors on the part of lower Courts and correct errors on the part of lower Courts and Tribunals in Judicial & Quasi Judicial matters.Tribunals in Judicial & Quasi Judicial matters.

The High Courts The High Courts Cont…Cont…

• On the Criminal side, the High Court has to On the Criminal side, the High Court has to confirm all sentences of death passed by Courts confirm all sentences of death passed by Courts of Sessions and hear References in this behalf.of Sessions and hear References in this behalf.

• High Court hears Criminal Appeals from High Court hears Criminal Appeals from convictions awarded by Sessions Judges and convictions awarded by Sessions Judges and Additional Sessions Judges or from the judgment Additional Sessions Judges or from the judgment of any other Court, where a sentence for more of any other Court, where a sentence for more than seven years imprisonment has been passed.than seven years imprisonment has been passed.

• The High Court is also empowered to entertain The High Court is also empowered to entertain appeals from orders of acquittal passed by any appeals from orders of acquittal passed by any Court.Court.

• High Court has also been conferred with Criminal High Court has also been conferred with Criminal Revisional Jurisdiction.Revisional Jurisdiction.

The Subordinate CourtsThe Subordinate Courts• This subordinate Courts are:This subordinate Courts are:

• (a) District Courts, empowered to hear (a) District Courts, empowered to hear appeals from courts of original civil appeals from courts of original civil jurisdiction besides having original civil jurisdiction besides having original civil jurisdiction jurisdiction

• (b) Sessions Court is courts of criminal (b) Sessions Court is courts of criminal jurisdiction, having the similar scope of jurisdiction, having the similar scope of powers.powers.

• The courts of specific original jurisdiction are The courts of specific original jurisdiction are courts of Civil Judges, of Judicial Magistrates; courts of Civil Judges, of Judicial Magistrates; Small Causes courts & Courts of Metropolitan Small Causes courts & Courts of Metropolitan Magistrates.Magistrates.

Quasi - Judicial SystemQuasi - Judicial System• This appendage to the Indian judicial This appendage to the Indian judicial

system is a recent & sincere attempt on system is a recent & sincere attempt on the part of the government to expedite the part of the government to expedite the judicial process through dilution of the judicial process through dilution of procedural formalities & avoidance of procedural formalities & avoidance of litigation. litigation.

• Tribunals form an indispensable part of Tribunals form an indispensable part of this system, which are appointed by the this system, which are appointed by the government and comprise of judges & government and comprise of judges & experts on the particular field, for which experts on the particular field, for which the tribunal has been constituted. the tribunal has been constituted.

RECENT TRENDS IN LAWRECENT TRENDS IN LAW

CRIMINAL PROCEDURE CODECRIMINAL PROCEDURE CODE

• Plea Bargaining in Criminal CasesPlea Bargaining in Criminal Cases

• Plea bargaining is introduced in India by Plea bargaining is introduced in India by Criminal Law (Amendment) Act, 2005.Criminal Law (Amendment) Act, 2005.

• This affects cases in which the maximum This affects cases in which the maximum punishment is imprisonment for seven years.punishment is imprisonment for seven years.

• However, offenses affecting the socio-economic However, offenses affecting the socio-economic condition of the country and offenses condition of the country and offenses committed against a woman or a child below committed against a woman or a child below the age of fourteen are excluded.the age of fourteen are excluded.

RECENT TRENDS IN LAWRECENT TRENDS IN LAW

CIVIL PROCEDURE CODE, 1908CIVIL PROCEDURE CODE, 1908

• MEDIATION & CONCILIATION MEDIATION & CONCILIATION ENCOURAGEDENCOURAGED

• NUMBER OF ADJOURNMENTS-3NUMBER OF ADJOURNMENTS-3

• SERVICE OF SUMMONS BY OTHER MEANSSERVICE OF SUMMONS BY OTHER MEANS

• EVIDENCE BY WAY OF AFFIDAVITSEVIDENCE BY WAY OF AFFIDAVITS

• TIME LIMIT TO PRONOUNCE JUDGEMENTSTIME LIMIT TO PRONOUNCE JUDGEMENTS

NEW TRENDS IN JUDICIARYNEW TRENDS IN JUDICIARY

• Computerisation of CourtsComputerisation of Courts

• Scope of PIL is being limitedScope of PIL is being limited

• Judiciary has become more openJudiciary has become more open

• Concept of Justice at Door-Step Concept of Justice at Door-Step encouragedencouraged

• Lok AdalatsLok Adalats

• Special Courts to dispose off Petty CasesSpecial Courts to dispose off Petty Cases

• Evening Courts started in many StatesEvening Courts started in many States

Legal EducationLegal Education

At present there are two educational At present there are two educational options for would-be Law graduates in options for would-be Law graduates in India. India.

• One is a five year program, to which one One is a five year program, to which one can be admitted after passing a school-can be admitted after passing a school-leaving examination taken after leaving examination taken after completion of 10+2.completion of 10+2.

• The other is a three year program The other is a three year program available only to those who have already available only to those who have already graduated with a degree in Arts, Science graduated with a degree in Arts, Science or Commerce. or Commerce.

Are you aware that...Are you aware that...• About two-thirds of our laws have not been About two-thirds of our laws have not been

used in independent India.used in independent India.

• About 10 per cent of them can be scrapped About 10 per cent of them can be scrapped right away.right away.

• And most of the 10 per cent in use currently And most of the 10 per cent in use currently have so many obsolete and conflicting have so many obsolete and conflicting provisions. provisions.

• The oldest law in the country has been in The oldest law in the country has been in operation for over a century and half. The one operation for over a century and half. The one sentence 1836 Bengal District Act empowers sentence 1836 Bengal District Act empowers the Bengal government to create as many zillas the Bengal government to create as many zillas as it wants. The Act still exists.as it wants. The Act still exists.

Are you aware that... Are you aware that... Cont…Cont…

• Under the Indian Sarais Act, 1867, it is a Under the Indian Sarais Act, 1867, it is a punishable offence for ‘inn-keepers’ not to punishable offence for ‘inn-keepers’ not to offer free drinking water to passer-by. offer free drinking water to passer-by.

• Only about 40 per cent of our laws are in Only about 40 per cent of our laws are in regular use. Independent India has till now regular use. Independent India has till now found no conceivable use for the rest.found no conceivable use for the rest.

• While India badly needs efficient laws, the While India badly needs efficient laws, the time spent by the law-making body on the time spent by the law-making body on the job is unbelievably little. job is unbelievably little.

• Parliament spends less than 0.6 per cent of Parliament spends less than 0.6 per cent of a Lok Sabha day on law-making.a Lok Sabha day on law-making.

THANKSTHANKS Interesting Legal websites:Interesting Legal websites:• www.indlii.orgwww.indlii.org• www.judis.nic.inwww.judis.nic.in• www.indiacode.nic.inwww.indiacode.nic.in• www.delhicourts.nic.inwww.delhicourts.nic.in• www.legalbasket.comwww.legalbasket.com • www.indiacyber.netwww.indiacyber.net • www.supremecourtofindia.nic.inwww.supremecourtofindia.nic.in In case of any suggestion/clarification, In case of any suggestion/clarification,

Please mail at: Please mail at: [email protected]@gmail.com