Basic Concepts of Indian Legal System by Vivek Yadav | Law Notes | Legal Methods

Law and morality are too vague to understand. It must be added here that the notions of law and justice can't be captured and presented before us within a few sentences. These notions are too vast that even words are not sufficient to define them. Many jurists from the ancient Greek period to the modern and even the post-modern era have attempted numerously to define these concepts, but have failed. One of the reasons may be that the roots of these concepts lie somewhere within the human psyche, which is extremely random and versatile. Well it is required to describe the tenets of the two main schools of law.

Law is continuously evolving norm or rather we should say that it is a part of a normative system whose work is to regulate certain norms in society. It is dynamic and is never at any point of time static. Law has to change from time to time as according to the ever-changing demands of society. Law doesn't exist for its own state. It has to achieve certain objectives, which may be short term or long term. Law aims to create an order in society (in all units of society). Law tries to create a working environment which is equally just to all sections of society.

On the other hand, there is the vague concept of morality which is a sought of norm or a part of normative system. Morals are actually certain yardstick standards in our society which work as prescriptions to human behavior. The starting of preaching of morals start from the very basic unit of our society i.e. family. As in a Hindu family, young people touch the feet of elders to wish them. There is no logic behind these morals but still these morals do prevail in our society. This is fully ones own private practice in which nowhere law has to intervene. A morality can be one which throws a negative impact on society and the other which can benefit the society. Law or morality both are normative systems of our society as both are normative and institutionalized by nature. The only difference between law and morality is that law is coercive by nature but morality is not. Law is enforced by coercion and its constant application on a society leads to the internalization of law in human soul. Initially, law gives only an external behavior or an overt effect, but with the pace of time the forceful obedience of laws takes the shape of an internalized realization of habitual obedience.


A common law foundation is a system of jurisprudence that is based on the principles under which the lower court must follow the decisions of the higher courts, rather than on statutory laws.
It usually awards monetary damages in certain cases. The common law system originated from “England” later adopted in the United States and Canada and in “Common Wealth” countries too. It is a legal system that gives great presidential weight to common law on the principle that it is unfair to treat similar facts differently on different occasions. The body of “precedent” is called “Common Law” and it binds future decisions.
The Origin
The new ruler of England after the Norman conquest in 1066 A.D. The new ruler of England, William I brought about a number of governmental reforms including revamped Legal Structure of England. Previously the legal system of England comprised of Country Courts presided by the Bishops and Country Sheriffs with both criminal and civil jurisdictions. By virtue of having conquered England, he proclaimed that all rights bases on land were now under the King. Hence courts came under the administration of Norman Rule. The King had intentions to enjoy the monetary benefits of the court.
In 1154, Henry II institutionalized the Common Law by creating a unified system of law “Common” to whole of England through incorporating and elevating local custom to the nation and reinstating a Jury System - citizens sworn on oath to investigate reliable criminal accusations and civil claims. The Jury reached its verdict through evaluating common law knowledge and local customs, not necessarily jurisdictions. The culmination of a centralized system of law with the practice of keeping record of decided cases for future reference wherein customs also played an exemplary role to decide nuanced points of law together gave birth to what is referred to as “The Common Law.”

Rule of law means “the law rules”. Rule of law refers to “a government based on the principles of law and not of men”. In its ideological sense, the concept of rule of law represents an ethical code for the exercise of public power, the basic postulates of which are equality, freedom & accountability. It refers a ‘climate’ of legal order which is just & reasonable. Every executive, legislative & judicial exercise of power must depend on this ideal for its validity.
It means that ‘Law shall prevail and not an individual’. Law shall be supreme and there cannot be any individual who is above the law. This is what is called the Doctrine of Rule of Law i.e. “Law governs & not individuals”.
The individuals (President, PM & Council of Ministers) may be the means of governance but even such individuals have to act under the law. Such individuals are not supreme rather the Constitution is the supreme.
The Rule of Law implies that the government has to exercise its powers in such a manner in which:
1. The dignity of an individual is upheld
2.  The object of social welfare & justice can be achieved.
3.The unity of the individual and the integrity of the nation can be promoted.
4.There is no discrimination between people in matters of sex, religion, caste or race etc.
5. Equality exists.
l  History of Rule of Law
Rule of law is existing since ancient times. During that period also, Law was above than the king. Everyone had to follow the law.
No one was above the law. In Dharma sastras- it is mentioned that”
Both parties must be heard. No decision can be given behind the back of the parties. The judges must not have any bias or interest in the cause. They must pronounce judgment with reasons.
l  Three Pillars of Rule of Law given by A.V Dicey
According to A.V. Dicey, rule of law means the ‘absolute supremacy of regular law’.  Dicey’s concept of rule of law means ‘no influence of arbitrary powers and thus exclusion of liberty, equality before the law and protection of individual liberties. Dicey’s theory has three pillars based on the concept that “a government should be based on principles of law and not of men”. These are:
1.        Supremacy of Law
2.        Equality before Law & equal protection before law.
3.        Protection of individual liberties.

The doctrine of Separation of Power was conceived by a French scholar Montesquieu. He found that concentration of power in one person or a group of persons resulted in tyranny (a state under cruel & oppressive govt. or despotism or absolutism or arbitrary use of power) and it can be misused. He therefore, felt that the governmental power should be vested in separate organs i.e. Legislature, Executive & Judiciary.
Thus, the doctrine of separation of powers emphasizes the mutual exclusiveness of the three organs of the government.
The doctrine signifies three formulations of structural classifications of governmental powers:
1.   The same person should not form part of more than one of the three organs of government.
2.   One organ of government should not interfere with any other organ of the government.
3.   One organ of the government should not exercise the functions assigned to any other organ.
l  Objective of Separation of Power
The aim of the doctrine is to guard against tyrannical and arbitrary powers of State.
The object is that the centre of authority must be dispersed to avoid absolutism.
It is essential to develop adequate “checks and balances” i.e. functioning of one organ is to be checked in some measure by the other, to prevent administrative arbitrariness.
l  Nature of Separation of Power
The doctrine is structural rather than functional. It means that it seems to be rigid but in reality it is flexible i.e. one organ can performs the function of other organ.
This doctrine cannot be literally applied to any modern government, because neither the powers of government can be kept in watertight compartment nor can any govt. run on strict separation of powers. Thus, no separation of powers in the strict sense exists in England, USA and India.

Natural justice is identified with two constituents of a fair hearing. These are the rule against bias and the right to a fair hearing. They are:
1) Nemo judex in causa sua 
no one should be a judge in his own case.
2) Audi alteram partem 
hear the other side or rule of fair hearing.

Principle of Natural Justice has three points as under:
l  Nobody can be punished unheard.
l  Nobody can be judge of his own case.
l  Authorities must act without bias.
Principles of natural justice are regarded as universal in nature. As they are universal in nature they are binding on all authorities including judiciary, executive and legislature, private individuals and all the organizations. The purpose of these principles is to exclude the elements of arbitrariness in decision and humanizing the decision making so that action must be supported by reasons.
The Apex Court held that these principles are implicitly found in Article 14 and 21 of the Constitution. They are so important for the functioning of the State that they are regarded as the part of the basic structure of Indian Constitution. The principles of Natural Justice have come out of the need of man to protect himself from the excesses of organized power. Man has always appealed to someone beyond his own creation. Such someone is the God and His Laws or Divine law or Natural law. Natural law is of ‘Higher Law of Nature’.
Natural law does not mean the law of the nature or jungle where lion eats the lamb and tiger eats antelope but a law in which the lion and lamb lie down together and the tiger hunt the antelope. Natural law is common sense justice. Natural laws are not codified. It is based on natural ideals and values which are universal.

Earlier Natural Law
Earliest form of natural law can be found in Roman philosophical expressions (Jus Naturale). It is used interchangeably with Divine Law, Jus Gentium and the Common Law of nations. Principles of Natural Justice are considered as the Basic Human Rights as they attempt to bring justice to parties naturally. Giving reasoned decisions is a postulate and principle of Natural Justice. No system of law can survive without these two basic pillars.

In law, the term "equity" refers to a particular set of remedies and associated procedures involved with civil law. These equitable doctrines and procedures are distinguished from "legal" ones. A court will typically award equitable remedies when a legal remedy is insufficient or inadequate.
In modern practice, perhaps the most important distinction between law and equity is the set of remedies each offers. The most common civil remedy a court of law can award is monetary damages. Equity, however, enters injunctions or decrees directing someone either to act or to forbear from acting.
l  Difference between Law and Equity
Equity allows courts to apply justice based on natural law and on their discretion. The most distinct difference between law and equity lies in the solutions that they offer.
l  Concept of Equity
It is generally agreed that equity implies a need for fairness (not necessarily equality) in the distribution of gains and losses and the entitlement of everyone to an acceptable quality and standard of living. The concept of equity is well entrenched in international law.
l  Origin
Two distinct system of law were administered by different tribunals at the same time in England till the year 1875. The older system was the Common Law and it was administered by the King’s Benches. A modern body of legal doctrine was developed and administered in the Court of Chancery as supplementary to and coercive of the old law, was the law of Equity. The two systems of law were almost identical and in harmony leading to maxim “Equity follows the law”. In other words the rules already established in the old Courts were adopted by the Court of Chancery and incorporated into the system of equity unless there were sufficient reasons for rejection or modification. In case of conflict, the rule of Chancery prevailed.
l  Nature
1.        Equity follows the law. In case of conflict between law and equity, law prevails.
2.        An equitable right arises when a right vested in one person by the law should be vested in another in the view of equity as a matter of conscience.
3.        Where equities are equal, which is first in time will prevail.

A Constitution is a set of Fundamental Principles or Established Presidents according to which the state or other organization are governed. When these principles are written down into a single collection or set of documents these documents set to comprises a written constitution.

Why do we need a Constitution?
It is a written constitution. We need constitution to maintain peace and order. We need constitution to keep an eye check on people and government so that there would be no violation of rules.
Presently there are 448 articles, 25 parts and 12 schedules in Constitution. While earlier, there were 395 Articles, 8 Schedules and 22 Parts.

Constituent Assembly: Some historical Points
They are the groups of people who draft the constitution group of people who draft the constitution.
In 1934 M.N Roy said that we need a constitution.
l  In 1935 INC officially Accepted the proposal
l  In 1940 The Queen accepted the offer in “August”
l  In 1946 The Cabinet Mission Plan was started.
l There were 193 members from Princely States and 296 members from General States.

Salient Features of Constitution
1.        It is a written Constitution
2.    It is a longest constitution which include (Geographical condition, Borrowed from other nations, How government should work etc)
3.        It is a Blend of Rigid and Flexible
4.        Parliamentary Form of Government (Adopted from UK)
5.     Independent Judiciary and Integrated form of Government (Adopted from US)
6.        Federal Form of system with unitary bias
7.        India is a secular place with welfare states.
8.        (61st Amendment in 1988) Right to vote age reduced from “21 to 18 years”
9.        Emergency Provision

  • Ø  National
  • Ø  State
  • Ø  Finance
The Judicial system of India consist of Judges and other Magistrates. They form the bench or the core of Judiciary System. Judiciary is responsible to ensure and re-enforce law and order. 
The Judiciary System of India consist of:
1.        Supreme Court
2.        High Court
3.        District Court or Subordinate Court

The Supreme Court
According to the constitution, the supreme court of India is the final court of appeal. It has the Chief Justice of India, along with 33 Judges. If the Supreme Court makes a Law, it is binding on all other courts of all States and Union Territory under Article 141.
The eligibility to become a Chief Justice is:
l  The Judge in one High Court or more, for at least 5 years or advocate in High Court for at least 10 years.
l  A distinguished Judge in the opinion of the President of India.

High Courts
The second in hierarchy comes High Courts, generally one for each state of India. Mumbai High Court is the oldest high court in India. The High Courts are vested with original, appellate jurisdiction. They also exercise superintendence and administrative functions over these district courts under Article 227 of the Constitution of India. Eligibility for a High Court Judge is:
1.  He should be a citizen of India.
2. An advocate should have at least 10 years of practice in any court.

District Courts
These courts are subordinate to the High Court of respective states. It is established according to the population distribution of the district and states, It look after the Civil and Criminal matters of the district. 
l  Hierarchy of Courts
The Hierarchy of Courts in India basically include Supreme Court, High Court and District Courts. The Supreme Court is placed at the topmost position of the the entire judicial system of the country. The Supreme Court, which is the highest authority in The Hierarchy of Court in India, deals with the cases related to conflict between the Central Government and the State Government or between the government of two states.
In the hierarchy of courts in India, Supreme court is followed by the High Courts. There are total 24 High Courts across the states in the country. Each and every high court has the power to interfere with the proceedings of the lower courts. The Apex Court in India, Supreme Court can change the decisions made by the High Courts of India. There is also the system of original appellant jurisdiction in some of the High Courts, like those of the Mumbai, Kolkata and Chennai. 
The Lok Adalat are the last level of court under the hierarchy of courts of India, which are basically the voluntary agencies and non permanent convenience courts at the disposal of Public . These agencies are engaged in solving the disputes with the help of various peace-making processes.

Mr. Vivek Yadav is Student Editor at MyLawman. He can be reached at [email protected] alert-info

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