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DR.

RAM MANOHAR LOHIA

NATIONAL LAW UNIVERSITY, LUCKNOW

ACADEMIC SESSION: 2016-17

WORLD LEGAL SYSTEMS

THE INDIAN LEGAL SYSTEM

Submitted To: Submitted By:

Mr. Malay Pandey Srajika Gupta

Assistant Professor B.A. L.L.B.(Hons.)

Dr. Ram Manohar Lohia National 1st Semester

Law University, Lucknow Roll no 151 ; Section B


TABLE OF CONTENTS

DECLARATION .......................................................................................................3

ACKNOWLEDGEMENT .........................................................................................4

INTRODUCTION .....................................................................................................5

LAW IN BRITISH-RULED INDIA..........................................................................6

LAW POST INDEPENDENCE ................................................................................8

PRESENT INDIAN LEGAL SYSTEM ..................................................................10

CONCLUSION ........................................................................................................14

REFERENCES.........................................................................................................15
DECLARATION

I hereby declare that the project work entitled “The Indian Legal System” submitted
to the Dr.Ram Manohar Lohiya National Law University, Lucknow is a record of an
original work done by me under the guidance of Mr. Malay Pandey, Assistant
Professor, Faculty of Law, Dr. Ram Manohar Lohiya National Law University and
this project work is submitted in the partial fulfillment of the requirements for the
award of the degree of B.A. LLB. (hons).

The results embodied in this thesis have not been submitted to any other University

or Institute for the award of any degree or diploma.


ACKNOWLEDGEMENT

I would like to express my gratitude towards all those whose help and constant support the
project would not have reached its current facet. Foremost I would like to thank Malay
Pandey Sir for his kind guidance and for quenching my queries on many doubts and
technicalities which I came up during the making of this project. I would take advantage
of this situation to thank the Hon’ble Vice Chancellor, Dr. Gurdip Singh, esteemed Dean
(Academics) Prof. Dr. C.M. Jariwala and Dr. Ram Manohar Lohiya National University
for providing me with such an enriching opportunity to work and research on this topic.

This project would not have seen the light of the day without the constant direction and
guidance of my parents and guardians to whom I owe a lot. I would also like to use this
opportunity to thank my brother in helping me out with the nitty-gritty of formatting.

I would also like to thank all of my friends and seniors who aided me along the way. I must
also extend my gratitude to the library and library personnel who provided me with
research material and good books to work upon and the distinguished authors, jurists and
journals for providing in the public domain such invaluable information.
INTRODUCTION

A legal system encompasses a set of legal principles and norms to protect and promote a
secure living to its subjects in a cultured society. It recognises rights, prescribes duties of
the people and provides the ways and means of enforcing the same. The legal system
considering the sociological, economic and political conditions in the society designs its
own goals and evolve a set of principles / rules / laws which help the society to attain its
identified goals.

Law in India has evolved from the religious prescription to the current constitutional and
legal system we have today, traversing through secular legal systems and the common law.
India has a recorded legal history dating back to 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
and elaborate 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 and also popularized further on.
Secular law in India is distinct widely from region to region and from ruler to ruler. Court
systems for civil and criminal matters were important features of many ruling dynasties of
ancient India. Excellent secular court systems existed under the Mauryas (321-185 BCE)
and the Mughals (16th – 19th centuries) with the latter giving way to the current and existing
common law system in the country.1

While the Indian legal system is basically and mostly a common law system, it contains
elements of the other three systems as well. It is an open system taking in what is most
suitable to our needs.

1
<http://www.barcouncilofindia.org/about/about-the-legal-profession/legal-education-in-the-united-kingdom/>
accessed 19 October 2016
LAW IN BRITISH-RULED INDIA

The common law system – a system of law based on recorded judicial precedents- was
established in 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 and majorly after its victory and Indian ruler’s defeat 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 then existing Mughal legal system in those
parts.2

Following the First War of Independence in 1857, the control of company over territories
in India passed to the British Crown. Being part of the empire- the British Crown saw the
next big shift in the Indian legal system. Supreme courts were established replacing the
existing mayoral 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.3

During the Raj, the Privy Council acted as the highest court of appeal. Cases before the
council were adjudicated and judged by the 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

2
<http://www.barcouncilofindia.org/about/about-the-legal-profession/legal-education-in-the-united-kingdom/>
accessed 20 October 2016.
3
Ibid.
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.4

Coding of law also began in earnest with the foundation of the first Law Commission.
Under the tutelage 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). These codes are still in existence in India with some
amendments that had been brought about later on.

4
Supra, note 1.
LAW POST 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 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.5

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.6

5
<http://www.barcouncilofindia.org/about/about-the-legal-profession/legal-education-in-the-united-kingdom/>
accessed 20 october 2016.
6
Ibid.
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.7

7
Ibid.
PRESENT INDIAN LEGAL SYSTEM

The legal system in India follows the common law model prevalent in the countries which
were at one time under British Rule or were part of the British Commonwealth. The
jurisprudence followed in India is almost the same as the one prevalent in England, though
it has been cross-fertilized by typical Indian values. The Constitution of India has set up
three branches of the State:
1. the executive,
2. the judiciary, and
3. the legislature.
These are demarcated by their respective areas of jurisdiction. The judiciary is invested
with the power to ensure that all organs of the Constitution act within their respective
constitutional limits. It is also the sole interpreter of the constitution and the sole arbiter in
all constitutional disputes. India follows the adversary system of legal procedure. This
means that the judge acts as a neutral arbiter upholding the balance between the contending
rivals without actively taking part in the forensic debate in the court.8
The legal hierarchy places the Supreme Court at the Apex. It adjudicates constitutional
issues and also acts as the final court of appeal in certain civil and criminal matters. The
Supreme Court also exercises extraordinary Constitutional powers to issue high
prerogative writs in cases adjudicating infringements of the fundamental rights guaranteed
by the Constitution.
The Supreme Court also exercises the extraordinary Constitutional power under Article
136 of hearing appeals in civil and criminal cases by Special Leave. Although, the
judgment of the State High Court is conclusive in almost all matters, it would be subject to
an appeal before the Supreme Court either by Leave granted by the High Court under
Articles 132 and 133 or by Special Leave granted by the Supreme Court under Article 136

8
The Indian Legal System B N Krishna.
of the Constitution. The Supreme Court also exercises original jurisdiction in disputes
between States or in disputes between one or more States and the Union of India.9
Each State has its own High Court which is the final court of appeal in that jurisdiction.
The High Court, apart from being the final court of appeal in civil and criminal matters,
also exercises extraordinary constitutional jurisdiction under Articles 226 and 227. Under
Article 226, it is empowered to issue high prerogative writs in cases of breach of
fundamental rights and also in other cases where any State organ acts in an illegal manner
or without jurisdiction and causes injustice to person that is irreparable by the normal mode
of litigation. Since the power is an extraordinary one, it is discretionary on the part of the
High Court to exercise it. Under Art.227 of the Constitution, the High Court is charged
with the duty of ensuring that the Courts and Tribunals subordinate to it act within their
jurisdictional limits. The High Court is also in charge of the administration of justice in the
State. The power to appoint and/or to dismiss subordinate Judges is to be exercised by the
State in consultation with and as recommended by the High Court while their promotion
postings and other connected matters are exclusively within the High Court’s domain.10
Below the High Court, there is a District Judge in each District who is in charge of the
administration of justice in his District. He would act as the Court of Appeal in most matters
and also as the court of original jurisdiction in some matters with large pecuniary stakes.
The District Judge serves in an appellate court in respect of civil and criminal appeals
arising in the District and also exercises power of a court of sessions dealing with criminal
trials of serious offences. Below the District Judge, there would be Judges at lower levels
of the rank of Junior or Senior Civil Judges, and Magistrates administering criminal
jurisdiction.11
Although, the model of legal administration in India is closely akin to the Common Law
model, the Indian courts must keep the Constitutional values in mind while administering
justice. The signature theme of the constitution, as pointed out by the Indian Supreme

9
Supra, note 8.
10
Ibid.
11
Supra, note 8.
Court, is social justice, and that is uppermost in the minds of the courts administering
justice.
Apart from the hierarchy of regular courts, the Constitution also makes provisions for
special Tribunals to aid in the administration of justice. Articles 323A and 323B empower
the Government to set up special tribunals to deal with causes in special areas. Thus we
have Tax Tribunals, Administrative Tribunals, Land Tribunals, and so on. These courts
exercise large powers in their respective areas. There are also special forums like the
Consumer courts, Electricity Regulatory Commission, Telecom Disputes Tribunal, each
with an elaborate setup and an Appellate forum.
Judicial Independence is one of the basic features of the Indian Constitution and the courts
jealously guard it. No incursion into the judicial arena by the executive or legislative,
except as authorized by the Constitution, would ever be tolerated by the courts. Even the
appointment of Judges to the High Courts and Supreme Courts has been taken over by the
Judges by a creative interpretation of the Constitutional provisions.
The Doctrine of Judicial Review of legislative and executive acts is another immutable
value of the Indian legal system. It goes hand in hand with the doctrine of Independence of
the Judiciary.

Constitution is the law of the land. Besides the Constitution of India, the Indian society is
also governed by many other laws. Indian personal law is fairly complex, with each
religion adhering to its own specific laws. In most states, registering of marriages and
divorces is not compulsory. Separate laws govern Hindus, Muslims, Christians, and
followers of other religions. The exception to this rule is in the state of Goa, where
a uniform civil code is in place, in which all religions have a common law regarding
marriages, divorces, and adoption.
As of May 2010, there were about 1,221 laws.12 However, since there are Central laws as
well as State laws, it is difficult to ascertain their exact numbers as on a given date and the
best way to find the Central Laws in India is from the official website.

Some of the laws are criminal law (The Indian Penal Code, 1860), Contract law (The Indian
Contracts Act, 1872.), Company Law (The Companies Act, 2013), Tort Law, Property
Law, various family laws etc.

12
< http://www.commonlii.org/in/legis/num_act/> accessed 21 October 2016.
CONCLUSION

Thus, Indian Legal System has evolved a lot over the centuries and is quite extensive, so
to speak. The Constitution is the governing law and the lex loci, although there are many
other specific laws to maintain the justice, equity and good conscience in the nation.

The Constitution is based on the ideals of justice, social, economic and political, liberty of
thought, expression, belief, faith and worship, equality of status and of opportunity and
fraternity assuring the dignity of the individual and the unity and integrity of the nation.
The rule of law was, therefore, placed on a footing higher than ordinary legislation.

Article 44 of the Constitution envisages that the state shall endeavour to secure for the
citizens a uniform civil code throughout the territory of India. The framers of the
Constitution apparently felt that national integration would not be complete unless
everyone in India is governed by uniform laws which do not distinguish between persons
on the grounds of religion, etc. It may be mentioned that all civilized societies in the world
have already accepted a uniform code and this has helped them build a better society. The
Indian legal system will achieve its proclaimed objective when a uniform code for all
citizens comes into being.
REFERENCES

The following material has been taken from –

 http://www.legalservicesindia.com/article/article/legislation-&-common-law-
indian-legal-system-587-1.html
 http://www.barcouncilofindia.org/about/about-the-legal-profession/legal-
education-in-the-united-kingdom/
 https://en.wikipedia.org/wiki/Law_of_India
 Research Paper on the Indian Legal System, B N Krishna.
 Research Paper on the Nature of the Indian Legal System, V S Deshpande.