U

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Indian Legal System (introduction to law, legal
System and dispute resolution)

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V.NAGARAJ
Professor of law
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National Law School of India University
Nagarbhavi
Bangalore-560072
vnagaraj@nls.ac.in
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• What is Law?

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• With out law what happens?
• Whether all countries have same or similar
law?
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• Why same law or similar law or otherwise?
• What is rule of Law?
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• Without laws it is chaos. Behavior of people

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cannot be predicted.
• Might becomes Right

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• No orderliness
• Life will be miserable because of uncertainty
• Development is not possible
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• Many more complications to be imagined

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• Law is a set of rules which are intended to

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regulate the relations between people living in
a state in the present day.
• It is to regulate relations between groups of
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people living in a particular territory.
• It is standardized set of rules
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• May be equally applicable to all or may not
be.( To bring about equality some protection
may be necessary.)
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• Whether all countries can have same or

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similar law?
• No. law is closely related to culture and

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history and the vision for the given country.
• Hence variations in law from country to
country and different provinces in the same
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country-federal state is a great example

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• What is rule of Law?

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• It means there is a standard Law applicable to
every body living in a defined territory

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• All people living in that territory are equally
bound by that law
• It is rule of law and not persons
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• No body is above law

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• There will be mechanisms or institutions to

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implement this law and clarify what is this law
• In India it is the Constitutional courts

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Legal systems- grouping of different countries Laws

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• Each Country has its own laws peculiar to their

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History, culture and vision for their country.
• It is difficult to know every county’s law.

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Hence grouping or classification..
• Broadly they are classified as legal systems of
the world
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 Legal systems of the world

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• Common law system

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• Continental legal system
• Socialist system-Russian model-Marxian

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philosophy
• Chinese system-
• Middle east or Islamic law-based on religion
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• Personal laws- based on religion

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 Which system of law is better?

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• The one where there is no control one person but

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everyone is subjected to control of law.
• The system where there are checks and balances
• There has to be a culture to honor the laws

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• An efficient system of enforcement
• Strong sense of citizenship
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• Law which provides for smooth changes
• A proper blend of rigidity and flexibility

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 What is Law –how to define law?

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(In the Indian context)
1. Law is a command laid by a political sovereign

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and it is enforceable by sanction -Positive Law
• This definition is more concerned with the
process of law making than the content
• Adopting this to the present day – law is

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expression of the will of the State through the
medium of legislature
• To Austin, political Sovereign is any person or
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body of persons to whom the bulk of political
society habitually obeys and does not himself
obey some other person or persons
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• What about customs, contracts, international

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law, Common law,etc which is being fallowed
by nation states?
• Positivists answer this question-these are laws
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impliedly endorsed by the sovereign
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2. Law is dictate of reason- Natural Law

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• Law consists of rules in accordance with
reason and common sense which are based
on human nature

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• Law has to confirm to the principles of justice
and morality
• Man has certain basic requirements-live as a
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human being and realize the full potential
bestowed on him by nature
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• To meet these requirements rules/law is made

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• If the law made is against human nature it is
bad law

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• Law should facilitate the development of full
potential of a human being
• The potential bestowed on the human being
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by the nature

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3. Law as a practice of Courts- Legal realism

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• All laws however made are recognized and
administered by the Courts

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• Here the Sovereign is the Court-it is for the
courts to say what is the meaning of law
• Courts put life in to the dead letter of law
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• Life of law has not been logic but experience

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• All the above theories of law are agreeing on

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one point that law consists of a set of rules
• Rules are regarded by the positive law as
command of the Sovereign

reason
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• Rules are regarded by Natural law as dictate of

• Rules are regarded by legal realism as a

practice of Courts
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• All the theories put together explain the
source, content and reality of what law is
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 Sources of Law

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1. Constitution including amendments

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2. Legislation-Statues or Acts-union list; state list; Concurrent
list
3. Delegated legislation-Rules made under a statute; rules
made by an association, Rules made by a Company

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4. Case law or Precedent-Article 141 of the Constitution law
laid down by the S.C is law of the land
5. Contracts
6. International Law
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7. Customary practices

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 Functions of Law

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• Regulating human behavior

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• Promote equality and rule of law
• Leading the society in the right direction-

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changing the bad customs
• Law as an instrument of economic development
• Law as an instrument of social development
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• Law as an instrument of social engineering
• Provides for smooth transformation

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 Law and morality

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• Law is basically not concerned with morality.

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• Incidentally there may be overlapping of law
and morality

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• Law has to lead the country according to the
policy laid down in the constitution
• It may be some policy document in other
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countries depending the legal system

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 courts

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SUPREME
COURT

H I G H C O U R T S

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SPECIAL
SUBORDINATE
COURTS &
COURTS TRIBUNALS

DISTRICT &
SESSIONS COURT

.S CIVIL COURTS (DISTRICT

JUDGE)

CIVIL JUDGE SR Division

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Civil Judge Jr division

CRIMINAL COURTS (SESSIONS

COURT)

CHIEF JUDICIAL
MAGISTRATE

JMFC 20
National litigation policy on Arbitration

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• More and more govt depts and PSU’s are

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resorting to arbitration
• Careful drafting of commercial contracts
including arbitration agreements must be

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given top priority
• Encourage resorting to arbitration-arbitration
becoming a mirror of Court must be stopped.
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• It must be efficient, cost effective and
expeditious
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 Litigation policy

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• Proposals to hold Court working in the morning and

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evenings shifts
• To enhance the functioning of Lok-Adalats
• Promoting of ADR methods
• Enhance legal aid to the marginalized sections and

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empower their access to justice
• Enhance the capacity of judicial officers and public
prosecutors
• Creating judicial academy in every state to facilitate
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such training
• Creating Court managers in every judicial district

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 Litigation Policy

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• The need for improvement of judiciary

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• There are more than three crores of cases
pending in various courts today

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• The challenges of liberalization and
Globalization
• How delay hinders economic development
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• Reducing the time for disposal from 15 years
to 3 years by 2020
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 Proceedings before a civil court

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• Claim statement along with dependent
documents

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• Written statement with all dependent documents
• Issues
• Evidence-Documentary, Material, Oral

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• Injunction application
• Arguments
• Judgment
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• Appeals, Revision, Review
• Execution
• Principles of natural justice
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 Appeal, Review, Revision

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• the appellate court shall have the fallowing

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powers:
• To determine a case finally; to remand a case;

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to frame issues and refer them for trial; to
take additional evidence or to require such
evidence evidence to be taken by the lower
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courts.
• Appeal is a right conferred by the statute

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 review

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• A person aggrieve by the decision of the court

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but has not preferred an appeal though such
appeal is allowed by the law may apply to the
court which has passed the judgment or
decree.
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• Similarly a review may be filed where an
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appeal is not allowed by the law

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 revision

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• The HC may call for the record of any case which has

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been decided by any court subordinate to such HC
and in which no appeal lies thereto. This is possible if
such subordinate court appears –

law, or
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• To have exercised a jurisdiction not vested in it by

• To have failed to exercise jurisdiction so vested or,

• To have acted in the exercise of its jurisdiction
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illegally or with material irregularity
• The HC may pass pass such order as it thinks fit.

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 Proceedings in a Criminal case

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• Police complaint/ FIR

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• Private complaint
• Arrest by the police-Cognizable and non cognizable
• Investigation by the police
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Filing charge sheet
Framing charges by the court
Proving the charges by the prosecution-Evidence-Material,
documentary, oral
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• Arguments
• Judgment-Conviction or acquittal
• Appeal or revision or review

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 Tribunals

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• Application
• Principles of natural justice

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• Interim applications
• Arguments
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•
•
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Judgement
Giving appropriate relief
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In giving appropriate relief equity is used
• In case of improper punishment setting aside
the enquiry and restoring to the original
position with a Liberty to conduct fresh 29
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• Judicial review
• Chandra Kumar –v- UOI- judicial review is the

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basic structure of the Indian constitution
• Adversarial proceedings

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• Balance of probabilities in civil cases
• Beyond reasonable doubt in criminal
proceedings
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• Inquisitorial proceedings
• Tribunals are suppose to be fallowing
inquisitorial proceedings 30
 Quasi judicial proceedings

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• Administrative authorities performing

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adjudication functions
• This is because of the familiarity of the facts

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associated with quick resolution of disputes
• Whenever there is decision on rights or
adverse decision made principles of natural
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justice to be fallowed.
• Subject appeals or writ under Art 226

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 ADR Methods

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• Negotiation

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• Mediation pre-litigation; Court annexed.
• Conciliation
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•
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Lok-Adalat- Pre -litigation: Court referred
Arbitration
National litigation policy on ADR
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 Disadvantages of Litigation

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1. Promotes Game Theory of Justice-

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2. Persons with resources are likely to win the
game.
3. Involves lot of delay.

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4. It is expensive.
5. Parties to the dispute have no control over
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the proceedings or out come.

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5. Appeals
6. Solutions coming from the Court may not be
satisfactory to the parties.

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7. Being win-lose situation, the animosity between the
parties may continue and even result in cumulative
disputes.
8. Difficulty in enforcing the decisions of the court.
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9. Limitations in handling complicated cases.

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 Vinod Seth v. Devinder Bajaj and Ors.,

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(2008) 8 SCC 1

“…If litigants are to be subjected to such

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directions in terrorem, the litigation public will
be dissuaded from approaching courts, even
in regard to bona fide claims. Such orders

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may lead to gradual loss of faith in the
judiciary and force the litigants to think of
extra judicial remedies by seking the help of
underworld elements or police to
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settle/enforce their claims thereby leading to
break-down of rule of law.”

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Sanjeev Kumar Jain v. Raghubir Saran Charitable

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Trust and Ors., (2012) 1 SCC 455

“…When a civil litigants is denied effective

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relief in courts, he tries to take his grievances
to ‘extra-judicial’ enforcers (that is goons,
musclemen, underworld) for enforcing his

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claims/right thereby criminalising the civil
society. This has serious repercussions on the
institution of democracy”
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 Advantages of ADR

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• It is participatory.

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• If successful not only the dispute is resolved
but also the pathology of the dispute is

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addressed.
• It promotes good relations and promotes
peaceful society.
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• Satisfactory solutions to the problems

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• It is a win-win situation.

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• Generally Cheaper.
• Provides and protects confidentiality
• Flexibility-procedure- also regarding Rights

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and duties
• Being participatory solutions,
implementations will be easy.
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• Can be used to resolve disputes as well as
develop rules- Environmental rules.
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 Legislations relating ADR

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• C.P.C –Sec 89.

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• Order 23 rule 3.
• Order 32-A
• C.P.C - Sec 80
• Arbitration Conciliation Act 1996.
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•
•
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Legal Services authorities Act 1987.
Industrial Disputes Act
Criminal Procedure code - Sec 320
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Family Courts Act-Sec 9
• Inter state water disputes Act.

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 NEGOTIATIONS

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• Negotiations is an interactive communicative

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process that potentially takes place whenever
you want something from some one else or
some one else wants some thing from you.

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• Negotiation is achieving what you want by
convincing the person from whom you want
that
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 Elements of Negotiation

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1. Interests: Desires or needs of the Negotiators. They are different

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from position. Position is what you want and it is one way of
satisfying what you want. Interests are unarticulated, crystallized,
vague needs, they are not as crystal clear as position. People take
positions in order to accomplish their interest. Interests may be

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classified in to three categories-
-Absolutely essential –Which must be
achieved.
-Important- which may be obtained in
different forms. There is flexibility.
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-Desirable- This is generally built as a
buffer - It may be given up to get important or absolutely
essential.

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2. Options: Options are possible solutions to the

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problem. There are many ways of satisfying
interests.

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3. Alternatives: If no settlement is reached ,
what alternatives you have? Outside
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negotiation.

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4. Legitimacy: The proposals and counter proposals are to

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be properly supported. In which case you will be on a
firm footing.

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5. Communications: Negotiations take place through
communications. Verbal and body language. Skills of
listening important. Even if communications fail
communications could be kept alive.
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6. Relationship: Negotiation will have two issues. Substance

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and Relationship. Separate substance from Relationship. In
positional Negotiation the tendency is to mix the two.
7. Commitment: Ensure that the other party also has

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commitment to honor the settlement. See that the
settlement is legally enforceable. It will have to fulfill the
requirements of a valid contract.
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 Skills of Negotiation

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STRATEGY PERSUASION COMPROMISE

CREATIVITY ANALYSIS EXPLANATION

& FORESIGHT

EMPATHY
.S & ADVISE

GENUINENESS LISTENING
& CO-OPERATION

PROBING
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 Negotiation strategies

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1. Competitive strategy

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1. Win-lose
2. Adversarial
3. Extreme positions taken
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5.
6.
7.
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Generally used when imbalance of power exists
Usually takes place in price negotiations
Pressure techniques used
Low credibility and fairness
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8. Relationships will be strained

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2. Collaborative or Problem solving strategy

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1. Parties look at the problem in an objective way and work
together to find solutions
2. Separates substance of the negotiations from relations
3.

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Parties explore many possible solutions and chose the
best which will suit both parties’ interests
Objective standards used
Persuasion along with reasoning – instead of pressure
techniques
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6. Emphasis on legitimacy and creativity
7. Ends up in win-win situation

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8. Focus on interests and not on positions- interests underlying
positions may well be unexpressed, intangible and perhaps

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inconsistent
position is what a person wants.
It is clearly articulated

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9. problem solving strategy does not think that the only interest
involved is money.
10. Behind every declared position the most powerful interests are
basic human needs.
Basic human needs include-Security, economic wellbeing,
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recognition, control over ones life.

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11.Invent options for mutual gain.

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12.Obstacles in inventing options for mutual gain-
Pre-judgment; Searching for a single answer; assumption of
a fixed pie

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13.Develop BATNA- Best Alternative to negotiated settlement.
14. If you do not know the BATNA you will reach an
agreement with your eyes closed.
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 Mediation

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• Is an informal process

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• natural party assists in negotiation
• Also called – ‘facilitated negotiation’
•
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Trying to get together people who do not
want to come together or talk to each other
• Flexible procedure
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• Historically used to build relations – Ex:

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countries like Japan, China and India as
well

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• Promotes harmonious relations and
acceptable solutions
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 Conciliation v mediation

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• Conciliation –more formal than mediation

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• Conciliated settlement is ‘deemed-decree’
• Mediation settlement is a contract
• Legislations expressly recognize
•
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Conciliator has to promote fair and equitable
settlement
• Obviously plays a pro-active role
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• Confidentiality of conciliation proceedings are
expressly protected by legislations
• Otherwise there is no difference between the two

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 Mediation Stages

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• Convening process

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• Mediators introduction and laying down
ground rules or explaining procedures.

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• Statement of the problem by the negotiators
and re-statement by mediator.
• Collection of additional information if
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necessary.
• Private meetings
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• Negotiations.

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• Settlement if negotiation is successful.
• Summing up of the settlement.
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Drafting the settlement and signing.
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 Remember while Mediating

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• Confidentiality.

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• Neutrality.
• Separate people from the problem.
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•
•
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Focus at what has to be done. Not on past
Mediator as a face-saver.
Motivating negotiators.
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• Empowering Negotiators?

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 Conciliation

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• A conciliation is assisted negotiation.

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• Appointment of conciliator
• Formal procedures like putting down claim

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and counter claim in writing .
• Subsequently amendments are possible.
• Conciliator conducts the proceedings
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• Conciliator can suggest non binding solutions
• Arbitration and conciliation; Legal services
Act; I.D.Act 56
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• Thank you

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