INDIAN LEGAL SYSTEM

Year 1947- India had just won its independence over the British and this was the start of
something new for the entire nation as well as for its legal system. A Constitution was going to
be enacted and the Indian judiciary was forever going to change. To better understand the
evolution of law or the history of India‟s legal system, let‟s go some centuries back.

Around 3300 BC, with the dawning of the Indus Valley Civilisation began the Bronze Age on
the Indian subcontinent. Throughout this era, Karma played a significant role concerning laws.
Basically, the idea behind Karma was to be a good person and do your duty, and escape Samsara
to become Brahman. This meant that the Indians were starting to get exposed to the idea of
living under “laws”.

Later on, in around 1500 BC, the Vedic Ages began in India. At that time, Aryans were the ones
developing the Vedic culture basing themselves on the Vedas, which represented the best
knowledge for the Hindus. The Vedas, Upanishads and other religious books of the Hindus,
Jains and Buddhists put laws in place in Ancient India, further exposing Indians to laws. An
outstanding feature of the Ancient Indian law is that it was secular, that is, not concerned with
religion, though it varied from kingdom to kingdom. Several leading dynasties of Ancient India
had court systems dealing with criminal and civil cases. 2 such dynasties are that of the Mauryas
and the Mughals with the latter paving the way for the current common law system.

During the 7th century, upon the invasion of the country by Muslims, Islamic laws became
applicable for the Muslims living there at that time.

Moving up in time, in 1726, the British rule began... The whole system was then changing to a
common law one and from this point onwards, India‟s modern legal system established. The
common law system – a system whereby great emphasis is placed on court decisions, which are
considered “law” with the same force of law as statutes- came to 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 known as Chennai, Mumbai and Kolkata

SAURTY Shekyn Das (1310709)

BSc (Hons) Finance (Minor: Law)
LAWS 1007Y(1) Foundations of Mauritian Law
24 January 2014
respectively). Judicial functions of the Company expanded substantially after its victory in the
Battle of Plassey.

Year 1772- The Company‟s courts had expanded out from the three major cities. In the process,
the Company slowly replaced the existing Mughal legal system in those areas.

Following the First War of Independence in 1857, the control of Company territories in India
passed on to the British Crown. With Supreme Courts being established, the existing mayoral
courts were converted into the first High Courts and the superintendence of lower courts and the
enrolment of law practitioners were deputed to the respective High Courts. These changes were
authorised by the Indian High Courts Act, passed by the British Parliament in 1862.

These major shifts in the Indian legal system had a ripple effect, further reinforcing the
transformation. During the British rule in India (1857-1947), the Privy Council acted as the
highest court of appeal. Cases before the Council were adjudicated by the Law Lords of the
House of Lords. The State sued and was sued in the name of the Britain sovereignty in her
capacity as Empress of the country.

Moreover, throughout the shift from the Mughal legal system, the advocates under that regimen
(“vakils”) also followed suit, though they mostly continued their earlier role as client
representatives. At that time, access to the newly-created Supreme Courts was limited to
members of the English, Irish and Scottish professional bodies; only they had the right of
audience and Indian practitioners were not allowed in. Subsequently, rules and statutes were
established in the Legal Practitioners Act of 1846 which opened up the profession, regardless of
nationality or religion.

Codification of the law also began in earnest with the foundation of the first Law Commission.
Under the stewardship of its chairman, T.B. Macaulay, the Indian Penal Code was drafted,
enacted and implemented by 1862. During that period, different Codes and Acts were drafted
and promulgated, the major ones being Code of Criminal Procedure, Evidence Act and Contracts
Act.

SAURTY Shekyn Das (1310709)

BSc (Hons) Finance (Minor: Law)
LAWS 1007Y(1) Foundations of Mauritian Law
24 January 2014
Coming back to the dawn of independence, in 1947, a document that would guide the young
nation was being crafted. Dr B.R. Ambedkar had the legal responsibility of formulating a
Constitution for the newly-independent and optimistic country. India saw its first leader in
Pandit Jawaharlal Nehru and a paternal figure in Mahatma Gandhi, both lawyers beyond
compare. They had deep insight and knowledge of the law and its relationship with society.
This understanding incited the founding fathers to dedicate much energy to writing a
Constitution of unprecedented magnitude in both scope and length.

The Constitution of India came to effect on 26th January 1950 and became known as the most
supreme legal document. Today, it is also regarded as the longest Constitution in the world. The
latter creates the most important institutions of the State and the framework for their effective co-
existence. It is the foundation stone of all the matters relating to judiciary, executive and
legislature.

Despite its wide scope, the Constitution has been fine-tuned to the needs of the people through
judicial pronouncements and legislative action. It puts an end to colonial interests, focuses on
public welfare, and empowers the general public. The social changes, brought with the changes
in the common law system, reflect the move of the Indian legal system towards a social justice
paradigm.

The common law system, from the British rule, gave rise to an organic law which became the
material source of law. The Indian Judicial system has been modelled on an adversarial system
of conducting proceedings rather than an inquisitorial one. In an adversarial system, 2 advocates
represent their parties' positions before an impartial person or a group of people, usually
a judge or jury, who attempt to determine the truth of the case instead of having a judge or a
group of judges having the task to investigate the case.

The Indian Judicial system has one integrated court system to deliver and administer state and
union laws. All the Courts and the Tribunals & Regulators work together for the good of the
nation. At the top of the court structure is the Supreme Court, followed by the State High
Courts, the subordinate courts that comprise of District Courts amongst others.
SAURTY Shekyn Das (1310709)
BSc (Hons) Finance (Minor: Law)
LAWS 1007Y(1) Foundations of Mauritian Law
24 January 2014
To date, the Supreme Court of India has delivered more than 24,000 reported judgements. Its
roles are that of a federal court (that is, to act as guardian of the Constitution) and that of the
highest court of appeal. The jurisdiction and powers given to the Supreme Court are defined
under Articles 131 to 142 of the Indian Constitution and consist of appellate jurisdiction and
writs. It has the power to hear a case for the first time as well as to review a lower court‟s
decision. Article 32 grants original jurisdiction to the Supreme Court for the enforcement of
fundamental rights of citizens and Article 139 for the enforcement of rights other than
fundamental rights.

Currently, there are 24 High Courts at the State level which have jurisdiction over a state,
a union territory or a group of states and union territories. They are the main civil courts of
original civil and criminal jurisdiction in the state, along with their subordinate District Courts.
Nonetheless, in spite of this, High Courts only exercise this role if the subordinate courts are
incompetent (not authorised by law) to try such matters because of lack of pecuniary, territorial
jurisdiction or in certain matters like if so designated specifically in a state or Federal law. For
example, Company Law cases are instituted only in a High Court. However, the principal work
of most High Courts entails appeals from lower courts and writ petitions under Article 226 of the
Constitution. Unlike the Supreme Court, High Courts can only issue writs for enforcement of
the rights provided under Part III of the Indian Constitution.

A salient feature of the Indian judicial system is that the Supreme Court and the High Courts
have the power of judicial review, a concept prevalent in America. This refers to the court's
authority to examine an executive or legislative act and to invalidate that act if it is ultra vires to
constitutional principles.

The District Courts, established by the State governments in India, administer justice for one or
more districts together, depending on the number of cases and population distribution in the
district. This determines the original jurisdiction of these courts. Also, they have appellate
jurisdiction over all subordinate courts situated in the district on both civil and criminal matters.
One such subordinate court on the civil side is the Junior Civil Judge Court while one on the
criminal side is the Chief Judicial Magistrate Court. District Courts are under administrative
control of the High Court of the State to which the district concerned belongs.
SAURTY Shekyn Das (1310709)
BSc (Hons) Finance (Minor: Law)
LAWS 1007Y(1) Foundations of Mauritian Law
24 January 2014
The Indian Legal system is based on a hybrid judicial system comprising of customs, precedents
and legislative law, all sources of law.

Customs are the oldest source of law and they played a significant role in law-making. Also
known as „Customary Law‟, Keeton defines it as “those rules of human action, established by
usage and regarded as legally binding by those to whom the rules are applicable, which are
adopted by the courts and applied as sources of law because they are generally followed by the
political society as a whole or by some part of it”. Being unwritten, it is sometimes called jus
non-scriptum, in contrast to legislation which is called jus scriptum.

Not every custom becomes law. For a custom to be valid, 2 main requirements should be met.
Firstly, there must be a material element, the Repetitio- the custom must be observed
uninterruptedly for a very long time. And secondly, there must be an intellectual element- the
Opinio Necessitatis- the general public must support the custom and feel a legal obligation to
adhere to it. A valid custom is law unless overruled by legislation. With time, custom as a
source of law is being replaced by statutes and judicial precedents.

Statutes (or Statutory law or the legislation) is the most important and modern source of law. In
India, laws are promulgated by the Parliament and state legislatures for the guidance or conduct
of persons to whom the statute is applicable expressly or by implication („Enacted Law‟ or
Statute Law). This function is empowered by the Constitution. Today, legislation is accepted as
superior to all other sources of law. It is not merely a source of new laws, but is equally effective
in abolishing those which already exists.

Another essential source of law is the judgements of the Supreme Court, High Court and some of
the specialised Tribunals. Called Judicial Precedents, they are rules of law based on the
principle that “like cases must be treated alike”. Moreover, they not only decide legal and
factual issues in a case but also, interpret/declare the law. This interpretation/declaration of the
law - the Ratio Decidendi- is a binding precedent. Judge-made laws or case laws also exist,
whereby judges apply their own common sense and justice to decide a case and pronounce a

SAURTY Shekyn Das (1310709)

BSc (Hons) Finance (Minor: Law)
LAWS 1007Y(1) Foundations of Mauritian Law
24 January 2014
judgement. This principle by which a judicial decision becomes a precedent is known as "Stare
Decisis" (Literal meaning: “stand by the decision”).

Like in England, the practice of judicial precedents is also very prevalent in India. For instance,
each court is absolutely bound by the decisions of courts superior to it according to Article 141
of the Constitution. The Ratio Decidendi and the Obiter Dicta of the Supreme Court constitute
binding precedents to be followed by all the other courts and tribunals. However, the Supreme
Court is not bound by its earlier decisions and may reverse certain decisions if need be.

In contrast, the judgments of a State High Court are binding on itself and on all subordinate
courts and tribunals in the State but they are not binding on another High Court or on courts
subordinate to another High Court. They can however be of great persuasive value. And for
specialised tribunals, their judgements are binding on themselves but not on the courts or other
tribunals.

Literally meaning „just‟, „fairness‟ and „according to good conscience‟, equity is another crucial
source of law, especially when the existing law is inadequate or silent with regard to a particular
case. The judges then generally apply their common sense, justice and fairness to deal with such
cases.

The Indian legal system does have some flaws. In December 2009, around 46,000 cases were
still to be heard by the Indian Supreme Court and more than 29 million cases by lower, more
local courts. The largest number of these pending cases concerned minor Motor Vehicle Cases,
petty crimes such as stealing, abusing, insult, slap, etc. Various reasons have been proposed for
this large backlog of cases, most commonly cited ones being minor corruption, limited staffing
and an acute shortage of accomplished judges.

Besides, in the past, simple and inexpensive dispute-resolving mechanisms like "panchayats" or
"dharmasatra" were used and these worked in a cultural context that many Indians understood.
Hence, today many rural Indians find the justice system heavily-loaded with complex jargon and
too demanding in terms of time and money. Moreover, poverty is a permanent handicap

SAURTY Shekyn Das (1310709)

BSc (Hons) Finance (Minor: Law)
LAWS 1007Y(1) Foundations of Mauritian Law
24 January 2014
preventing them from seeking redress from the courts, for grave wrongs done to them by men in
privileged positions.

Furthermore, corruption is rampant in Indian courts and it has even reached the highest judicial
forum, that is, the Supreme Court of India. Judges are bribed, court personnel paid off to delay
or accelerate a trial or to make a complaint disappear. People holding key positions such as
legislators or executives try to influence the judiciary by pressurising judges. Corruption is also
a form of exploitation, because people in higher positions extort money in the shape of bribes,
gifts and services, even for simple services which are actually their duty. According
to Transparency International, judicial corruption in India can be due to large backlog of cases,
scarcity of judges and complex procedures, all of which are aggravated by a preponderance of
new laws.

Lastly, social justice is a fundamental aspect of the Indian Constitution. Yet, this concept is
violated too many times. There are countless cases of social and economic injustice, increasing
inequalities in most spheres of human activity and endless discrimination against the weaker
sections of society. The law and order machinery generally favours the richer classes and other
oppressors. Only rarely does someone actively take up the case of the down-trodden people.
Besides, the government passes laws for promoting social justice in various fields, but these are
not strictly enforced. This leads to various social justice issues.

Because of these shortcomings, people are losing faith in judiciary at an alarming rate,
threatening the constitutional and democratic governance of the country.

To sum up, India owes its modern legal system to various eras- Indus Valley Civilisation, Vedic
Ages, British rule and so on. The legal system has experienced many refinements to finally
being moulded into the current common law system. It is based on a hybrid judicial system
comprising of customs, precedents, equity and legislative law, all sources of law. The Indian
legal system tries its best to protect the constitutional rights of its citizens. Yet, there is still a
long way to go to reach perfection.

SAURTY Shekyn Das (1310709)

BSc (Hons) Finance (Minor: Law)
LAWS 1007Y(1) Foundations of Mauritian Law
24 January 2014