The Indian Legal System

The Indian Legal System

Tribhuwan Chandra Pandey (Advocate)
High Court of Uttrakhand, Nainital 263001

In the entire legal history of the world the Indian Legal System is one of the oldest legal systems. The Indian Legal System has developed and altered over the past few decades. The Constitution of India which came into existence in 1950 is the fountainhead of the Indian Legal System. It demonstrates the Anglo-Saxon character of judiciary which is basically drawn from the British Legal System.

Source of law:

Primary Sources:

Customary law
The Indian Constitution
Statutes (legislation).

Secondary Source:

Case law (judgments of the Supreme and Court High Court)

The main source of law in India is the Constitution which gives due recognition to statutes, Acts, ordinance, case law and customary law consistent with its dispensations. Statutes, Acts and Ordinance are enacted by Parliament, State Legislatures and Union Territory Legislatures. There is also a subordinate legislation in the form of rules, regulations and bye-laws made by Central and State Governments and local authorities i.e., Municipal Corporations, Municipalities and other local bodies. This subordinate legislation is made under the authority conferred or delegated either by Parliament or State or Union Territory Legislature concerned.

India has diversified culture; it has local customs and various conventions which are not in contravention to the Constitution or statue or ethics. People of different religions as well as traditions are regulated by all the different sets of personal laws in order to relate to family affairs like as Hindu Law, Muslim Law, and Christian Law etc.

Enactment of Laws:

The Parliament of India is empowered to make laws enumerated in the Union List and the State Legislatures are competent to make laws on matters enumerated in the State List. While both the Union and the States have power to make laws on matters enumerated in the Concurrent List. Only Parliament has power to make laws on matters not included in the State List or the Concurrent List. Where the Parliament and the State Legislatures under Concurrent List make laws inconsistence to each other, in that events the laws made by Parliament shall prevail over law made by State Legislatures, to the extent of the inconsistency and the State law shall be void unless it has received the assent of the President, and in such case, shall prevail in that State.

Laws made by Parliament apply throughout or in any part of the territory of India and the laws made by State Legislatures apply only within the territory of the State concerned.

Indian Judiciary:

The Indian judicial system is one of the unique features of the Indian Constitution. It provides a single integrated system of Courts to administer both Union as well as State laws. The Supreme Court of India is the highest appellate authority in Indian legal system. Below the Supreme Court, each state or a group of states have High Courts and several subordinate courts are under these High Courts.

As every State is divided into Districts, these Districts are presided by a District and Sessions Judge. The District Judge have original as well as appellate jurisdiction. The Sessions Judge is the highest judicial authority in a District. Under the District and Sessions Judge, there are Courts of civil and criminal jurisdiction i.e. Civil Judge (Senior Division) which have unlimited power to decide the civil matters of any pecuniary value and Civil Judge (Junior Division) known as Munsif which have limited power to decide the civil matters. Similarly in criminal jurisdiction, comprise the Chief Judicial Magistrates or Chief Metropolitan Magistrate and Judicial Magistrates or Metropolitan Magistrate of First and Second Class.

In addition to traditional judicial system, the Parliament or the appropriate legislature may, by law, provide for the adjudication any disputes and complaints, establish the tribunals (Article 323-A & 323-B).

Hierarchy of the Indian Courts:

Supreme Court of India

High Courts

District & Sessions Courts

Chief Judicial Magistrate Civil Judge (Sr. Div) Chief Metropolitan Magistrate

Judicial Magistrate Civil Jude (Jr. Div.) Metropolitan Magistrate (I & II Class)

Executive Magistrate

Basics of Indian Legal System:

Under Article 124(2) and 217 of the Constitution of India, the President is empowered to appoint every judge of the Supreme Court and High Courts, respectively.

The Supreme Court of India comprises the Chief Justice and other Judges not more than 25 in numbers, appointed by the President of India [Article 124 (2)]. The Judges of the Supreme Court retire up on attaining the age of 65 years. The condition for appointment of a Supreme Court Judge is that a person must be a citizen of India and must have been, at least five years as a Judge of a High Court or of two or more such Courts in succession, or an Advocate of a High Court or of two or more such Courts in succession for at least 10 years standing in the Bar or he must be in the opinion of the President a distinguished jurist. Similar provisions exist for the appointment of a Judge of a High Court (Article 217).

So far the appointment of the District Judge, the Governor of the concerned State in consultation with the High Court exercising jurisdiction in relation to such State appoint a person not already in the service of the Union or of the State as a district judge if he has been for not less than seven years an advocate or pleader and is recommended by the High Court for appointment (Article 233). The Governor of the State concerned may appoint the persons in judicial service other than district judge after consultation with State Public Service Commission and with High Court concerned i.e. through recruitment (Article 234).

The Constitution ensures the independence of Supreme Court and High Courts Judges in various ways. The Judges of the Supreme Court and High Courts cannot be removed from office except by an order of the President passed after an address in each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of members present and voting, and presented to the President in the same Session for such removal on the ground of proved misbehaviour or incapacity. The Judges Inquiry Act, 1968 provides for the inquiry of the conduct of a judge to prove the charges against him.

Jurisdiction of the Supreme Court:
Three types of Jurisdiction vested in the Supreme Court of India:

(A) Original Jurisdiction (Article 131):

The Original jurisdiction refers to those matters which can be heard by the Supreme Court only. Such matters cannot be entertained by any other court. Under original jurisdiction of the Supreme Court the following category of disputes are covered:

(1) Disputes between the Government of India and one or more states; or
(2) Disputes between the Government of India and any state on one side and one or more states on the other side; or

(3) Between two or more states.

In the matters of violation of Fundamental Rights, the Supreme Court have both the original and appellate jurisdiction, it means such cases can be either directly filed before the Supreme Court or may be brought to it through the appeal against the order of the High Court.

(B) Appellate Jurisdiction:

The appellate jurisdiction of Supreme Court consists three categories of appeals:

(1) Appeals under Article 132 -An appeal shall lie in the Supreme Court from any judgment, decree or final order of the High Court, if such High Court certifies that the case involves a substantial question of law which requires the interpretation of the Constitution.

(2) Appeals under Article 133 -An appeal shall lie in the Supreme Court from any judgment, decree or final order of the High Court in civil proceedings, if such High Court certifies:

(a) That the case involves a substantial question of law of general importance, and
(b) That in the opinion of the High Court the said case needs to be decided by the Supreme Court.

(3) Appeals under Article 134-an appeal shall lie in the Supreme Court in a criminal matter, against the judgment or final order of the High Court, if the High Court:

(i) has in appeal reversed the order of the acquittal of the accused person and sentenced him to death, or

(ii) has withdrawn for trial before itself any case from any subordinate court to its authority and has in such trial convicted the accused person and sentenced him to death.

(iii) certifies that the case is a fit case for appeal to the Supreme Court.

(C) Advisory Jurisdiction of the Supreme Court under Article 143:

The Supreme Court of India also has the advisory jurisdiction. If at any time it appears to the President that any question of law or fact has arisen or is likely to arise which is of public importance, he may refer the question to the Supreme Court to seek its legal opinion on such question. But the opinion is not bindings upon the President and the Supreme Court is also not bound to give the opinion.

Special Leave to Appeal by the Supreme Court:

Under Article 136 of the Constitution of India, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India. However, this power does not apply to the appeals against any judgment, determination, sentence or order passed by any court or tribunal related to the Armed Forces.

The proceedings of the Supreme Court are conducted in English only. Supreme Court Rules, 1966 are framed under Article 145 of the Constitution to regulate the practice and procedure of the Supreme Court.

Jurisdiction of the High Courts:

Article 225 defines the jurisdiction of the High Courts in respect of their sitting and hearing of the matters. The Constitution of India ensures certain powers to the High Courts:

(A) Power of the High Courts to issue certain writs (Article 226):

The power of the High Courts to issue writs under Article 226 is very wider than that of the Supreme Court. It is not confined only to the fundamental rights, but it extends to all cases where the legal rights are infringed. The high Courts have power to issue a writ or direction in the nature of certiorari, mandamus, prohibition, habeas corpus and quo warranto.

(B) Power of superintendence over all courts (Article 227):

The High Courts have power to superintend over all courts and tribunals come under to its jurisdiction and the High Court may call for returns from any court, make and issue general rules and prescribe forms for relating the practice and proceedings of such courts. The High Court may also settle tables of fees.

(C) Transfer of certain cases to High Court (Article 228):

Where the High Court is satisfied that a case pending in the subordinate court to it involves substantial question of law or any other reason, may call the records from court subordinate and determine the same.

Legal Head of the Union and State:

Attorney-General of India (Article 76):

The president appoints a person who is qualified to be appointed a Judge of the Supreme Court to be Attorney-General for India. The Attorney-General is the highest law officer in the Country. The Attorney-General is duty bound to give advice to the Government of India upon such legal matters, and to perform such other duties of the legal character, as may from time to time be referred or assigned to him by the President. The Attorney-General holds office during the pleasure of the President and receives such remuneration as the President may determine.

Apart from Attorney-General, the other law officers are Solicitor General of India and Additional Solicitor General of India.

Advocate-General for the State (Article 165):

Like the Attorney General, the Advocate General is the highest law officer in the State. The Advocate General is appointed by the Governor of the State and holds the office during the pleasure of the Governor.

Apart from the Advocate General there are Additional Advocate General and Government Advocates who attend to litigation in the courts on behalf of the State Government and its agencies.

To avoid any complication and conflict of duty, a law officer is not allowed to advice or hold briefs against the Government of India and States.

Apart from judges, advocates are the most important officers of the Court. All the advocates are governed by the provisions of the Advocates Act 1961. There are two classes of advocates, viz. senior advocate and other advocates. An advocate if he so desires, be designated as senior advocate by the Supreme Court or a High Court, if the court is of the opinion that the advocate has ability, standing at the Bar and has special knowledge or expertise in law.

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