Introduction

Law is a set of obligations and principles imposed by the

government for securing welfare and providing justice to
society. India’s legal framework re ects the social,
political, economic, and cultural components of society.
The common law system garnered its roots throughout
the history of the legal system in India. The main sources
of law in India are the Constitution, statutes, customary
law and the judicial decisions of superior courts. The
laws passed by parliament may apply throughout all or a
portion of India, whereas the laws passed by state
legislatures normally apply within the borders of the
states concerned.

History of Indian legal system

• Judicial system during the Ancient Hindu Period

The Vedic, Bronze, and Indus Valley civilizations all
contributed to the legal judiciary system in India. The
rst known source of law in India was classical Hindu
law. “Dharma” deals with legal and religious duties.

The main sources of Hindu Law or “Dharma” are Veda,

Smriti, and Aâchâra.

Vedas consisted of hymns, praises, customs, and

religious obligations. The four Vedas:

• Rigveda,
• Yajurveda,
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 • Samaveda, and
• Atharvaveda
Smritis de ned obligations, practices, and teachings of
religion that an individual needs to practice in society.
‘Dharmashastra’ is a Smriti and one of the primaeval
legal texts written in Sanskrit, containing information
such as the principles of law, duties of the king, manner
of

• evidence, and witnesses. The king was in command

and was counselled by his ministers. The legal
procedure was Vyavahāra under Hindu law.
The stages of legal procedure were:

the plaint, the reply, the trial, and the decision.

Manusmriti (200 BC – 200 CE), Yajnavalkya Smriti (200 –

500 CE), Naradasmriti (100 BC – 400 CE), Vishnu Smriti
(700 – 1000 CE), Brhaspatismriti ( 200 – 400 CE) and
Katyayanasmriti (300 – 600 CE) are some of the
prominent Smritis from Dharmashastra texts that were
used as precedents.

• “Manusmriti” is the ancient set of rules that binds a

person by speci c responsibilities and obligations.
The framework of the judicial system was
constructed throughout the era of dynasties to solve
various civil and criminal issues.
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‘Achâra’ was the customary norm of a particular society.
Achâra was used in matters where Vedas and Smritis
were silent.

THE ANCIENT: THE CONCEPT OF `DHARMA`

Indian jurisprudence is rich in essence because of the

various sources of law it emerges from. It gets validity
and recognition from various religious laws, local
customs, and traditions. Dharma forms the main
foundation of Indian jurisprudence. Due to its
importance in Hindu traditions, Dharma played a big
role in shaping Indian law.

Meaning of Dharma:

Dharma is a crucial idea with different implications in

Indian religions. Dharma is the main source of Indian
Jurisprudence. It has a big role in forming various Indian
Laws.

Dharma is ‘Duty’

Among the Hindus the word ‘Dharma’ is used for giving

justice in ancient times and according to them Dharma
includes a person’s moral and social obligations as an
individual as well as a member of the society.
According to

• Buddhists = Dharma is a cosmic law

• Jains and Sikhs = Dharma is religious paths.
The main motive of Dharma is to conduct human
behavior in its cosmic and human context.

Sources of Dharma

According to Hinduism, salvation or Moksha is the

eternal Dharma for human beings. Dharma has been
derived from the Vedic concepts of ,

• Veda, Upanishads and Shrutis: In Vedic texts like

Rig Veda, Dharma has been de ned “to mean the
foundation of the universe. “Later on, Hindu texts like
the Upanishads de ned Dharma in a more
moralistic way. In a nutshell, Shrutis or Vedas depict
the life of our early ancestors, a thin way of life, way
of thinking, customs, thought, but does not deal
with rules of law in a systematic manner. The
existing rules of law have been deducted from the
vast source of the four Vedas.
• With the changing pattern of society, after the Vedic
Period, the need to understand the Veda in a new
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 light arose. The Hindu legal codes like Manusmriti
used Dharma to mean both religious and legal
duties of men in their various relations. Most of the
Dharmasutras mingled religious and moral
perspectives with secular law.
• The Smritikars in this part have dealt with the law
under 18 titles and 132 subtitles. Many rules and
principles propounded by the Smritikars at that time
have found a place even in modern laws.
• Dharmashastras: The Hindu legal system is one the
most ancient systems and it is wholly dependent on
the idea of Dharma. It can be found as
Dharmashastras among the Hindus. Most of the
Dharmashastras is divided into three parts:
1. Achara, = rules of religious observance
2. Vyavahara, = Civil law
3. Prayaschitta.= penance and expiation (penalties,
amendments)
The Smritikars in this part have dealt with the law under
18 titles and 132 subtitles. Many rules and principles
propounded by the Smritikars at that time have found a
place even in modern laws.

Some important Smritis are

• Manusmriti: Manusmriti, also known as Manava-

dharmashastra is a code of laws given by Manu. It
focuses on cosmogony, the sacraments (Samskaras),
study of Vedas, initiation (upanayana), marriage,
 hospitality, the conduct of women and wives, means
of puri cation, and the laws of the Kings.
Manusmriti does not create any distinction between
religious law and practices, and it can be said that it
is some sort of secular law created in the ancient
period.
• Naradasmriti is a kind of Dharmashastra that is
juridical in nature. It does not deal with righteous
conduct and penances. In fact, it covers the area of
legal procedure of the original text of Manu.
Naradasmriti is also known as the ‘juridical text par
excellence’ as it is focused only on procedural and
substantive law.
• Yajnavalkya Smriti deals with rules of procedural
law
Some other Smritis are Katyayana Smriti, Prasara, and
Brihaspati Smriti.

• Arthashastra was written by the Great Mauryan

Empire Kautilya which deals with the qualities and
disciplines needed for a king to rule his subjects
more expeditiously as it refers to the pursuit of
worldly goods, personal success, stability, and social
status. It is one of the most important treatises in the
Indian Vedic Civilization which led ancient India to
a more well-organized society.
• Ramayana and Mahabharata: Later, Hindu Epics
like the Ramayana and Mahabharata has also
de ned Dharma as the aim of an individual is to
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 perform all his responsibilities towards others. These
Epics often represent authentic gures as
‘Dharmaraja’. The scope of Dharma has expanded
from time to time with the changes of the society
and this interpretation of Dharma is being continued
till now
Nature of Dharma

In the Vedic era in Rig Veda Dharma was meant as the

foundation of the universe which means that God
created life by using the principles of Dharma. The
Hindu Jurisprudence has always given more importance
to an individual’s duty rather than rights.

On the other hand, Hindu Legal code like Manusmriti

gives it a legalistic meaning and speci cally delas with
religion, administration, economics, social justice, civil
and criminal laws, marriage and succession etc., Apart
from all these factors, divinity is the main source of all
social, legal, political and spiritual rights. Thus, we can
say that Dharma is a multi-layered concept.

Relation Between Jurisprudence and Dharma

For attaining social justice as well as justice under law,

government should make laws which people are willing
to accept. In ancient times, Dharma was recognized as
law in the society and people accepted to follow those
Shastras and Smritis. Dharma leads to the foundation of
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multiple affairs of the society; thus, we can say it
constitutes rules for working of the society.

The rule of law as mentioned in the Dharmashastras and

Dharmasutras is the very most important base of Indian
Jurisprudence and as society evolves, the rule of law
should also evolve along with it.

• Law and judicial system during the Mughal

Empire
During the reign of the Mughal Empire, Mahakuma-e
Adalat was found to provide justice to the people. Quran,
Sunna and Hadis, Ijma, and Qiyas were the primary
sources of Muslim law. The principles governing the
judicial procedure:

The hierarchy of the judicial system was classi ed into:

1. At capital level
The Emperor’s Court was the capital’s highest court,
presided by the emperor. It had subordinate courts,

• The Chief Court dealt with the original, appellate

civil and criminal cases
The two types of Chief Court.

1. The Delhi Court of Qazi: regulated the local civil &

criminal cases
2. The Qazi-e-Askar Court: regulated military cases of
the capital.
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 • Chief Revenue Court dealt with the cases related to
revenue matters
2. At state level

The Governor’s Court and Bench or Adalat-e-Nazim the

cases at the state level are classi ed into

• Chief Appellate Court: in charge of the state’s civil and

criminal matters
• Chief Revenue Court: in charge of the state’s revenue
issues.
3.At district level

The district-level was managed and supervised by Chief

Civil and Criminal Court. It was classi ed into

• District Qazi Court for regulating civil and criminal

cases,
• Faujdari Adalat for handling state security,
• Kotwali, for regulating petty criminal cases and
• Amalguzari Kachari for regulating revenue cases.
4.At Parganas level

At the Parganas level, a group of villages or the

surrounding areas were governed by

• Adalat-e-Pargana which were headed by Qazi-e-

Pargana regulating civil and criminal cases,
• Kotwali regulated petty criminal cases and
• Amin-e-Parganah dealt with revenue matters.
5. At village level
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At the village level, the panchayat handled civil and
criminal cases. The president of the village panchayat
was the sarpanch and the rest of the members were
elected by the villagers.

• Indian legal system during the British reign

The East India Company established the judicial system
in India during the British era by creating Mayor’s
Courts in Madras, Bombay, and Calcutta formulated
under the Charter of 1726 and governed under the
common law. During the Mayor’s Court’s regulation,
certain constraints were discovered. It lacked details on
the kind of law it would regulate and since the English
law was the main source of law, in certain instances, it
neglected personal and customary laws. By the Charter
of 1753, mayor courts were re-established and brought
under the regulating authority of the Governor and the
Council. The Council of Privy was the highest court of
appeal.

The judicial system was separated into

• District Diwani Adalats for civil cases and

• District Fauzdari Adalats for criminal matters and
The Supreme Court at Calcutta was established under
the Regulating Act of 1773 AD under Warren Hastings’
administration (1772-1785 AD). The District Faujdari
Court was abolished during the reign of Cornwallis
(1786-1793 AD), and the Circuit Court and Mal Adalats
were established. Sadar Nizamat Adalat was relocated to
Calcutta and placed under the administration of the
Governor-General and members of the Supreme Council,
assisted by Chief Qazi and Chief Mufti. A district judge
presided over the

District Diwani Adalat, which was renamed District,

City, or Zila Court. He also established civil courts for
both Hindus and Muslims, such as the Munsiff Court,
the Registrar Court, the District Court, the Sadar Diwani
Adalat, and the King-in-Council.

Several commissions of the law were published under

the reign of William Bentinck (1828-1835 AD) in the form
of

• the Civil Procedure Code of 1859,

• the Indian penal Code of 1860, and
• the Criminal Procedure Code of 1861, and various
guidelines addressing particular matters and circuit
courts were abolished.
• Introduction to the Government of India Act, 1935
Government of India Act, 1935 was passed by the
Parliament of the United Kingdom. It de ned the
characteristics of the government from “unitary” to
“federal”. Powers were dispersed between centre and
state to avoid any disputes.

In 1937, Federal Court was established and had the

jurisdiction of appellate, original and advisory. The
powers of Appellate Jurisdiction extended to civil and
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criminal cases whereas the Advisory Jurisdiction was
extended with the powers to Federal Court to advise
Governor-General in matters of public opinion. The
Federal Court operated For 12 years and heard roughly
151 cases. The Federal Court was supplanted by India’s
current Apex Court, the Supreme Court of India.

Types of laws in the Indian legal system

The Constitution of India, 1950 is the foremost law that

deals with the framework of the codes, procedures,
fundamental rights and duties of citizens and powers,
and duties of government. The laws in India are
interconnected with each other forming a hybrid legal
system.

The classi cation of laws in the Indian judiciary system:

• Criminal Law
Criminal law is concerned with laws pertaining to
violations of the rule of law or public wrongs. Criminal
law is governed under the Indian Penal Code, 1860, and
the Criminal Procedure Code, 1973. The Indian Penal
Code, 1860, de nes the crime, its nature, and
punishments whereas the Criminal Procedure Code,
1973, de nes exhaustive procedure and punishments of
the crimes.

Murder, rape, theft, and assault are all examples of

criminal offences under the law.
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 • Civil Law
Matters of disputes between individuals or organisations
are dealt with under Civil Law. Civil courts enforce the
violation of certain rights and obligations through the
institution of a civil suit. Civil law primarily focuses on
dispute resolution rather than punishment. The act of
process and the administration of civil law are governed
by the Code of Civil Procedure, 1908. Civil law can be
further classi ed into Tort law, Family Law, Property
Law, and Contract law.

Some examples of civil law are defamation, breach of

contract, and a dispute between landlord and tenant.

• Common Law
A judicial precedent or a case law is common law. A law
passed by the Supreme Court will be obligatory upon the
courts and within the territory of India under Article
141 of the Indian Constitution.

A common law theory, Natural justice, often known as

“Jus Natural,” encompasses statutory provisions for
justice. Natural justice is identi ed with two constituents
of a fair hearing. These are the rule against bias and the
right to a fair hearing.

• Nemo judex in causa sua (Rule against Prejudice),

• Audi alteram partem (Rule of fair Hearing), and
• Reasoned decision
◦ are the rules of Natural Justice.
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 ◦ Principle of Natural Justice has three points as
under:
▪ Nobody can be punished unheard
▪ Nobody can be judge of his own case.
▪ Authorities must act without bias.
Features

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 codi ed. 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.

The doctrine of “Stare Decisis” is the principle for the

common law. It is a Latin word that literally means “to
stand by that which is decided.” The doctrine of Stare
Decisis states the obligation of courts to follow the same
principle or judgement established by previous decisions
while ruling a case where the facts are similar. A
judgement can override or alter a common law, but it
cannot override or change the statute.

• Statutory Law
Statutory legislation refers to any written law approved
by a legislative body to regulate the conduct of its
citizens. The Central Government makes laws through
Parliament, the state government makes laws through
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Vidhan Sabha, and the Local Government makes laws
through municipalities. A bill is introduced in the
legislature and for it to become an act voted upon by the
members of both houses requires the assent of the
President. The President of India has veto powers over
his assent.

STRUCTURE OF THE INDIAN JUDICIAL SYSTEM

The judiciary system of India regulates the interpretation

of the acts and codes, and dispute resolution, and
promotes fairness among the citizens of the land. In the
hierarchy of courts, the Supreme Court is at the top,
followed by the High Courts and district courts.

• Supreme Court
The Supreme Court is the apex body of the judiciary. It
was established on 26th January 1950. The formulation of
the Supreme Court of India is under Chapter IV of Part V
of the Constitution of India. Article 145 of the Indian
Constitution enshrines the establishment of Supreme
Court Rules, 1966.

The jurisdiction of the Supreme Court covers 3

categories:

• Original (Article 131),

• Appellate (Article 133 and Article 134), and
• Advisory (Article 143).
The Chief Justice of India is the highest authority
appointed under Article 126. The principal bench of the
Supreme Court consisted of seven members including
the Chief Justice of India. Presently, the number has
increased to 34 including the Chief Justice of India due to
the rise in the number of cases and workload. A Supreme
Court judge is contravened from practising in any other
court of law.

An Individual can seek constitutional remedies in the

Supreme Court by ling a writ petition under Article 32.
A law passed by the Supreme Court will be obligatory
upon the courts and within the territory of India under
Article 141 of the Indian Constitution.

• High court
The highest court of appeal in each state and union
territory is the High Court. Article 214 of the Indian
Constitution states that there must be a High Court in
each state. The High Court has appellant, original
jurisdiction, and Supervisory jurisdiction. However,
Article 227 of the Indian Constitution limits a High
Court’s supervisory power. The Constitution and its
powers of a High Court are dealt with under Articles 214
to 231. In India, there are twenty- ve High Courts, one
for each state and union territory, and one for each state
and union territory. Six states share a single High Court.
The oldest high court in the country is Calcutta High
Court, established on 2 July 1862.

The appointment of a judge of the High Court is dealt

with under Article 217 of the Constitution. The High
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Court Judges (Salaries and Conditions of Service) Act,
1954, deals with the regulations of salaries and services
of a High Court judge.

An individual can seek remedies against violation of

fundamental rights in High Court by ling a writ under
Article 226.

• District courts
Chapter VI of Part VI of the Indian Constitution deals
with subordinate courts. District Courts regulate matters
of justice in a particular area or district chaired by a
District judge. There are 672 district courts all over India.
The appellate jurisdiction of the High court governs the
ruling of the district court.

The district courts are divided into the Court of District

Judge and the Court of Sessions Judge.

• Court of District Judge

A Court of District judge deals with cases of civil nature.
It vests and exercises its powers from the Code of Civil
Procedure, 1908. It has original and appellate
jurisdiction. The district courts have appellate
jurisdiction over subordinate courts. Section 9 states that
the courts have the power to try any case unless barred
from doing it. Section 51 to 54 of the Code of Civil
Procedure, 1908 deals with procedure in execution. The
civil district courts are categorised in ascending order,

• Junior Civil Judge,

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 • Principal Junior Civil Judge Court,
• Senior Civil Judge Court.
The appeal is led under territorial jurisdiction,
pecuniary jurisdiction, and Appellate Jurisdiction.
Additional District Judge or Assistant District Judge is
appointed depending upon the case and workload and
has the same powers as a District Court Judge.

Under the pecuniary jurisdiction, a civil judge can try

suits of valuation not more than Rupees two crore.

Under territorial jurisdiction, Section 16 to 20 of the Code

of Civil Procedure, 1908 deals with the territorial
jurisdiction of courts. Cases are decided based on the
nature of the property and within the local limits of the
jurisdiction.

• Munsiff Courts
Munsiff courts are the lowest rank of courts in a district.
It is usually under the control of the District Court of that
region. The pecuniary and territorial jurisdiction limits
are de ned by the State Government.

• Court of Session
A Court of Sessions judge deals with criminal matters
and is the highest authority in the district for criminal
matters. It vests and exercises its powers from the Code
of Criminal Procedure, 1973. Section 225 to Section 237
deals with the procedure for trial by a Public Prosecutor
before a Court of Session. Section 29 deals with the
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 sentences by a Chief Judicial Magistrate, Court of a
Magistrate of the rst class, and a Magistrate of the
second class.

The Session Court is categorised as the court of Chief

Judicial Magistrate and deals with matters punishable by
imprisonment for a term exceeding seven years but
cannot be punished with a death sentence. The Court of
a Magistrate of the rst class deals with matters
punishable for a term of not exceeding three years or a
ne not exceeding ten thousand rupees, or both. A
Judicial Magistrate of the second class deals with matters
punishable with imprisonment not exceeding one year, a
ne of one thousand rupees, or both. An Additional
Sessions Judge or Assistant Sessions Judge is appointed
depending upon the case and workload and has the
same powers as a Session Court Judge. An Assistant
Session Judge cannot give imprisonment of more than 10
years as per Section 28(3). The Additional Session judge
can exercise the powers of a Sessions Judge vested into
him by any general or special order of the Sessions Judge
according to Section 400.

Section 366(1) of the Code of Criminal Procedure, 1973

lays down that a Session Court cannot impose a death
penalty without the consultation of the High Court.

• Metropolitan courts
Section 16 states that Metropolitan courts are established
in metropolitan cities in consultation with the High
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Court where the population is ten lakh or more. Section
29 states that Chief Metropolitan Magistrate has powers
as Chief Judicial Magistrate and Metropolitan Magistrate
has powers as the Court of a Magistrate of the rst class.

FORM OF THE INDIAN CONSTITUTION

The Constitution of India has features of both federal

and unitary constitutions and is quasi-federal in nature.

• The federal features of the Indian Constitution are:

Division of Powers

The federal system of the Indian Constitution

decentralises powers between the state and the centre.
Article 246 under the Seventh Schedule of the Indian
Constitution lays down three lists describing jurisdiction
at each level:

• Union List: The power to make laws is vested in the

Parliament of India. It consists of laws related to
national importance such as defence, foreign
relations, Naval, and military.
• State List: The state government has the right to
make laws under this list. It consists of laws related
to public order, public health, sanitation, agriculture,
and transport.
• Concurrent List: The state government and the
Government of India as a joint have the right to
make laws under this list. It consists of laws related
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 to criminal procedure, trade unions, education,
industrial, and labour disputes.
Article 254 describes the doctrine of repugnancy. In case
of any inconsistency between the laws of Parliament and
the laws of the state on the Concurrent List, the laws of
the Parliament will prevail.

Supremacy of the Indian Constitution

The Constitution of India is the supreme pillar of the

laws in India. The core framework of the Indian
Constitution cannot be modi ed or altered. Laws should
be made concerning the Constitution of India. In case of
any inconsistency with the Indian Constitution, the law
shall be declared void by the power of judicial review
vested to the High Court and Supreme Court.

In a landmark case of Kesavananda Bharati v. State of

Kerala (1973), the Hon’ble Supreme Court de ned the
principle of basic structure and held that the basic
structure of the Indian Constitution cannot be changed.

Independent judiciary

The Indian Constitution established the Supreme Court

of India as the apex and independent judiciary to ensure
the supremacy of the Indian Constitution. It regulates the
framework of matters such as limits of power of central
and state, fundamental rights and duties, and directive
principles of state policy.
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Written Constitution

The Constitution of India is the backbone for the rest of

the acts. It is the longest written constitution and it
consists of a Preamble, 470 Articles divided into 25 Parts
with 12 Schedules.

Rigid Constitution

The Constitution of India is rigid in the provisions

mentioned under it. The process for altering the
provisions requires a special majority in the Parliament
and the approval of at least half of the state legislatures.

Dual Government Polity

The Indian Constitution established dual government

polity by setting up a Central and state Government. The
Union government regulates the safeguarding of
national issues whereas the state government focuses on
regulating regional and local issues.

Bicameralism

The Indian Constitution established a system of

bicameralism. It divides the legislative body into Lok
Sabha (House of the People) and Rajya Sabha (Council of
States). Lok Sabha or the lower house consists of
representatives of people elected through a universal
adult franchise whereas Rajya Sabha or the upper house
is a permanent body that cannot be dissolved and is
elected by the legislative members of the state.

• The unitary features of the Indian Constitution are:

Single citizenship

People of India enjoy single citizenship irrespective of in

which state they reside. This ensured that the people of
India are united as a whole. Articles 5 to 11 under Part II
of the Indian Constitution deal with citizenship.

Strong centre

The Central Government has powers over the state

government and carries residuary powers as well. The
state government is bound by the laws of the Central
Government.

Single Constitution

The Constitution of India is a uniform constitution that is

applied to the whole of India. It is a framework of duties
and powers of central and state government,
fundamental rights and obligations of individuals, and
directive principles of state policy that apply throughout
India’s territory.

Appointment of governor

Article 155 states that by the assent of the President the

governor of India is appointed. Article 156 states that the
governor must hand over his resignation to the
President.

Emergency powers

The emergency powers are vested with the President

under Part XVIII, from Articles 352 to 360. The
emergency is applied in the state of affairs when there is
adversity to the security, sovereignty, unity, or integrity
of a state.

SEPARATION OF POWERS

The separation of powers is categorized into 3 branches,

legislative, executive, and judiciary, each has its own
powers and responsibilities. The primary goal of the
separation of powers was to prevent the misuse of
authority by one organ of government. This model of
separation of powers is known as trias political. The
idea of this system was inspired by the model of
Montesquieu in De l’esprit des Lois, 1747 (The Spirit of
Laws,1747). In India, the separation of powers is not
mentioned anywhere rigidly but can be found in parts of
the Indian Constitution. The details of the three branches
are as follows:

• Legislature
The legislative body is responsible for the enactment of
the law. It comprises of Lok Sabha, Rajya Sabha, and the
President. It regulates the executive and the judiciary, the
other two branches of law. Article 211 lays down
restrictions on the legislature and refrains it from any
discussion of the conduct of Judges of the Supreme
Court or of a High Court.

• Executive
Part V of Chapter I deals with the executive organ. The
executive body is in charge of government
administration and policy execution in accordance with
the principles of natural justice. The executive branch
consists of the President under Article 53(1), the Vice
President, the Prime Minister, and the council of
ministers for advice under Article 74 to the President.

• Judiciary
The judiciary organ is responsible for the interpretation
of the law and aiding justice in society. It comprises the
Supreme Court, High Court, and all other subordinate
courts. Article 50 of Part IV, Directive Principles of State
Policy, establishes the separation of the judiciary and the
executive. However, the executive organ is responsible
for the appointment of the judiciary. Article 122 and
Article 212 state that courts do not have the power to
examine Parliamentary proceedings and legislative
proceedings respectively.

System of checks and balances

The system of checks and balances regulates the

prevention of arbitrary and inconsistency with the
powers vested to the organs of the government. The goal
 behind the checks and balances system is to guarantee
that the branches of government check and balance each
other so that no branch of the government becomes too
authoritative. It promotes ef ciency and specialization
between the organs of the government. The judiciary
organ has the power to exercise judicial review over the
acts of legislative and executive. The Judiciary must
ensure that it exercises within the limits of the law. The
executive organ is responsible for the appointment and
removal of Judges in the judiciary organ and the
executive is answerable to the legislative organ.

General legislative process.

• A draft of a legislative proposal is a bill. A Minister

can introduce a Government Bill or a Private
Member can introduce a Private Member’s Bill in
either the Lok Sabha or the Rajya Sabha. To
introduce a bill in the House, a Member-in-Charge
must rst obtain approval from the Speaker of the
House. This procedure is known as “ rst reading”.
• In case the introduction to the bill is opposed, the
speaker may allow a brie ng by the members
opposing it. When a bill is objected to on the ground
that it exceeds legislative power, the speaker may
allow a discussion and voting in the House.
• After being introduced in the parliament, a bill is
usually published in the public gazette. Under
certain conditions, a bill can be published in the
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 public gazette without being introduced in the house
with the speaker’s approval. The committee may
seek expert advice or public opinion, but it must
ensure that the general principles and provisions are
taken into consideration while drafting the report
and submitting it to the House after completion.
• There are two steps to the second reading stage. The
rst stage consists of a discussion of the bill’s
underlying principle. It is up to the House to
recommend the bill to a Select Committee or Joint
Committee, circulate it for public opinion, or pass it.
When a bill is issued for public input, it is not
authorized to move it for a motion of consideration.
The second stage consists of examining the Bill
clause by clause or as reported by a select or joint
committee. The applicable amendments that are
moved but not withdrawn are voted on. If the
amendments obtain a majority of votes, they form
part of the law.
• The Member-in-Charge can move the bill for
the third stage once the second stage is completed.
At this stage, the debate about whether the Bill
should be supported or opposed takes place.
• After a Bill has been passed in one House, it is sent
to other house for consensus and goes through the
above-mentioned stages with the exception of the
introduction stage. If one house passes a bill but the
other rejects it, or the houses reject the bill’s
amendments, or more than six months have passed
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 from the date of receipt of the bill by one house, the
president may call a joint sitting of the two houses to
resolve the stalemate. The bill is considered to be
passed by both Houses if a majority of the total
number of members of both Houses vote in favour
of it and its amendments. However, there cannot be
a joint sitting for amendment in the Constitution.
• Ordinary bills require only a simple majority. Each
house must vote with a majority of not less than
two-thirds of the members present in order to revise
the constitution.
• After the Houses of Parliament have passed a bill, it
is delivered to the President for his approval. After
the President signs a bill into law, it becomes an act.
RULE OF 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.
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

“ 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.”

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 in uence 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
As per the rst postulate, rule of law refers to the lacking
of arbitrariness or wide discretionary power. In order to
understand it simply, every man should be governed by
law.

According to Dicey, English men were ruled by the law

and the law alone and also where there is room for
arbitrarinessand that in a republic no less than under a
monarchy discretionary authority on the part of the
Government must mean insecurity for legal freedom on
the part of its subjects. There must be absence of wide
discretionary powers on the rulers so that they cannot
make their own laws but must be governed according to
the established laws.

• Equality before law

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According to the second principle of Dicey, equality
before law and equal subjection of all classes to the
ordinary law of land to be administered by the ordinary
law courts and this principle emphasizes everyone
which included government as well irrespective of their
position or rank. But such element is going through the
phase of criticisms and is misguided. As stated by Dicey,
there must be equality before law or equal subjection of
all classes to the ordinary law of land. French legal
system of Droit Administrative was also criticized by
him as there were separate tribunals for deciding the
cases of state of cials and citizens separately.

• Predominance of Legal Spirit

According to the third principle of Dicey, general
principles of the Indian Constitution are the result of the
decisions of the Indian judiciary which determine to le
rights of private persons in particular cases. According to
him, citizens are being guaranteed the certain rights such
as right to personal liberty and freedom from arrest by
many constitutions of the states (countries). Only when
such rights are properly enforceable in the courts of law,
those rights can be made available to the citizens. Rule of
law as established by Dicey requires that every action of
the administration must be backed and done in
accordance with law. In modern age, the concept of rule
of law oppose the practice of conferring discretionary
powers upon the government and also ensures that
every man is bound by the ordinary laws of the land as
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 well as signi es no deprivation of his rights and liberties
by an administrative action.

RULE OF EQUITY

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
insuf cient 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.

• 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.

• 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.
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 • 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 suf cient reasons for
rejection or modi cation. In case of con ict, the rule of
Chancery prevailed.

• Nature
• Equity follows the law. In case of con ict between
law and equity, law prevails.
• 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.
• Where equities are equal, which is rst in time will
prevail.
PUBLIC INTEREST LITIGATION

• The expression ‘Public Interest Litigation’ has been

borrowed from American jurisprudence, where it
was designed to provide legal representation to
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 previously unrepresented groups like the poor, the
racial minorities, unorganised consumers, citizens
who were passionate about the environmental
issues, etc.
• Public interest Litigation (PIL) means litigation led
in a court of law, for the protection of “Public
Interest”, such as Pollution, Terrorism, Road safety,
Constructional hazards etc. Any matter where the
interest of public at large is affected can be redressed
by ling a Public Interest Litigation in a court of law.
• Public interest litigation is not de ned in any
statute or in any act. It has been interpreted by
judges to consider the intent of public at large.
• Public interest litigation is the power given to the
public by courts through judicial activism. However,
the person ling the petition must prove to the
satisfaction of the court that the petition is being
led for a public interest and not just as a frivolous
litigation by a busy body.
• The court can itself take cognizance of the matter
and proceed suo motu or cases can commence on the
petition of any public spirited individual.
Some of the matters which are entertained under PIL are:

1. Bonded Labour matters

2. Neglected Children
3. Non-payment of minimum wages to workers and
exploitation of casual workers
4. Atrocities on women
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 5. Environmental pollution and disturbance of
ecological balance
6. Food adulteration
7. Maintenance of heritage and culture
Genesis and Evolution of PIL in India: Some Landmark
Judgements

The seeds of the concept of public interest litigation were

initially sown in India by Justice Krishna Iyer, in 1976
in Mumbai Kamagar Sabha vs. Abdul Thai.

The rst reported case of PIL was Hussainara Khatoon

vs. State of Bihar (1979) that focused on the inhuman
conditions of prisons and under trial prisoners that led to
the release of more than 40,000 under trial prisoners.

• Right to speedy justice emerged as a basic

fundamental right which had been denied to these
prisoners. The same set pattern was adopted in
subsequent cases.
A new era of the PIL movement was heralded by Justice
P.N. Bhagawati in the case of S.P. Gupta vs. Union of
India. In this case it was held that “any member of the
public or social action group acting bona de” can invoke
the Writ Jurisdiction of the High Courts (under article
226) or the Supreme Court (under Article 32) seeking
redressal against violation of legal or constitutional
rights of persons who due to social or economic or any
other disability cannot approach the Court.
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By this judgment PIL became a potent weapon for the
enforcement of “public duties” where executive action or
misdeed resulted in public injury. And as a result any
citizen of India or any consumer groups or social action
groups can now approach the apex court of the country
seeking legal remedies in all cases where the interests of
general public or a section of the public are at stake.

Justice Bhagwati did a lot to ensure that the concept of

PILs was clearly enunciated. He did not insist on the
observance of procedural technicalities and even treated
ordinary letters from public-minded individuals as writ
petitions.

The Supreme Court in Indian Banks’ Association,

Bombay & Ors. Vs. M/s Devkala Consultancy Service
and Ors held :- “In an appropriate case, where the petitioner
might have moved a court in her private interest and for
redressal of the personal grievance, the court in furtherance of
Public Interest may treat it a necessity to enquire into the state
of affairs of the subject of litigation in the interest of justice.”
Thus, a private interest case can also be treated as public
interest case.

M.C Mehta vs. Union of India: In a Public Interest

Litigation brought against Ganga water pollution so as to
prevent any further pollution of Ganga water. Supreme
Court held that petitioner although not a riparian owner
is entitled to move the court for the enforcement of
statutory provisions, as he is the person interested in
protecting the lives of the people who make use of
Ganga water.

Vishaka v. State of Rajasthan: The judgement of the case

recognized sexual harassment as a violation of the
fundamental constitutional rights of Article 14, Article 15
and Article 21. The guidelines also directed for the
Sexual Harassment of Women at Workplace (Prevention,
Prohibition and Redressal) Act, 2013.

Factors Responsible for the Growth of PIL in India

• The character of the Indian Constitution. India has

a written constitution which through Part III
(Fundamental Rights) and Part IV (Directive
Principles of State Policy) provides a framework for
regulating relations between the state and its citizens
and between citizens inter-se.
• India has some of the most progressive social
legislations to be found anywhere in the world
whether it be relating to bonded labor, minimum
wages, land ceiling, environmental protection, etc.
This has made it easier for the courts to haul up the
executive when it is not performing its duties in
ensuring the rights of the poor as per the law of the
land.
• The liberal interpretation of locus standi where any
person can apply to the court on behalf of those who
are economically or physically unable to come before
it has helped. Judges themselves have in some cases
 initiated suo moto action based on newspaper
articles or letters received.
• Although social and economic rights given in the
Indian Constitution under Part IV are not legally
enforceable, courts have creatively read these into
fundamental rights thereby making them judicially
enforceable. For instance the “right to life” in Article
21 has been expanded to include right to free legal
aid, right to live with dignity, right to education,
right to work, freedom from torture, bar fetters and
hand cuf ng in prisons, etc.
• Judicial innovations to help the poor and
marginalised: For instance, in the Bandhua Mukti
Morcha, the Supreme Court put the burden of proof
on the respondent stating it would treat every case
of forced labor as a case of bonded labor unless
proven otherwise by the employer. Similarly in the
Asiad Workers judgment case, Justice P.N. Bhagwati
held that anyone getting less than the minimum
wage can approach the Supreme Court directly
without going through the labor commissioner and
lower courts.
In PIL cases where the petitioner is not in a position to
provide all the necessary evidence, either because it is
voluminous or because the parties are weak socially or
economically, courts have appointed commissions to
collect information on facts and present it before the
bench.
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 Who Can File a PIL and Against Whom?

Any citizen can le a public case by ling a petition:

• Under Art 32 of the Indian Constitution, in the

Supreme Court.
• Under Art 226 of the Indian Constitution, in the
High Court.
• Under sec. 133 of the Criminal Procedure Code, in
the Court of Magistrate.
However, the court must be satis ed that the Writ
petition ful ls some basic needs for PIL as the letter is
addressed by the aggrieved person, public spirited
individual and a social action group for the enforcement
of legal or Constitutional rights to any person who are
not able to approach the court for redress.

A Public Interest Litigation can be led against a State/

Central Govt., Municipal Authorities, and not any
private party. The de nition of State is the same as given
under Article 12 of the Constitution and this includes the
Governmental and Parliament of India and the
Government and the Legislature of each of the States and
all local or other authorities within the territory of India
or under the control of the Government of India.

Signi cance of PIL

• The aim of PIL is to give to the common people

access to the courts to obtain legal redress.
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 • PIL is an important instrument of social change and
for maintaining the Rule of law and accelerating the
balance between law and justice.
• The original purpose of PILs have been to make
justice accessible to the poor and the marginalised.
• It is an important tool to make human rights reach
those who have been denied rights.
• It democratises the access of justice to all. Any
citizen or organisation who is capable can le
petitions on behalf of those who cannot or do not
have the means to do so.
• It helps in judicial monitoring of state institutions
like prisons, asylums, protective homes, etc.
• It is an important tool for implementing the concept
of judicial review.
• Enhanced public participation in judicial review of
administrative action is assured by the inception of
PILs.
Certain Weaknesses of PIL

• PIL actions may sometimes give rise to the problem

of competing rights. For instance, when a court
orders the closure of a polluting industry, the
interests of the workmen and their families who are
deprived of their livelihood may not be taken into
account by the court.
• It could lead to overburdening of courts with
frivolous PILs by parties with vested interests. PILs
today has been appropriated for corporate, political
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 and personal gains. Today the PIL is no more limited
to problems of the poor and the oppressed.
• Cases of Judicial Overreach by the Judiciary in the
process of solving socio-economic or environmental
problems can take place through the PILs.
• PIL matters concerning the exploited and
disadvantaged groups are pending for many years.
Inordinate delays in the disposal of PIL cases may
render many leading judgments merely of academic
value.
LEGAL SERVICES AND LOK ADALATS

It is very dif cult to reach the bene ts of the legal

process to the poor and to protect them against injustice.
Therefore, it is urgently required to introduce dynamic
and comprehensive legal service programme with a view
to deliver justice to the poor and needy person. Legal
aid is the provision of assistance to people otherwise
unable to afford legal representation and access to the
court system.

History Of Legal Aid Services

The earliest Legal Aid movement appeared in the year

1851 when some enactment was introduced in France for
providing legal assistance to the poor. In Britain, the
history of the organised efforts on the part of the State to
provide legal services to the poor and needy dates back
to 1944, when Lord Chancellor, Viscount Simon
appointed Rushcliffe Committee to enquire about the
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facilities existing in England and Wales for giving legal
advice to the poor and to make recommendations as
appear to be desirable for ensuring that persons in need
of legal advice are provided the same by the State. Since
1952, the government of India also started addressing to
the question of legal aid for the poor in various
conferences of Law Ministers and Law Commissions. In
1960, some guidelines were drawn by the government
for legal aid schemes. In different States legal aid
schemes were oated through Legal Aid Boards,
Societies and LawD In 1980, a Committee at the national
level was constituted to oversee and supervise legal aid
programmes throughout the country under the
chairmanship of Hon. Mr. Justice P.N. Bhagwati, then the
Judge of the Supreme Court of India. This Committee
came to be known as CILAS (Committee forI Legal Aid
Schemes) and started monitoring legal aid activities
throughout the country.

Article 39-A of the Constitution of India provides that

State shall ensure that the operation of the legal system
promotes justice on a basis of equal opportunity, and
shall in particular, provide free legal aid, by suitable
legislation or schemes or in any other way, to ensure that
opportunities for securing justice are not denied to any
citizen by reason of economic or other disability. Articles
14 and 22(1) also make it obligatory for the State to
ensure equality before law and a legal system which
promotes justice on a basis of equal opportunity to all.
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 Legal aid strives to ensure that constitutional pledge is
ful lled in its letter and spirit and equal justice is made
available to the poor, downtrodden and weaker sections
of the society.

Article 39-A of Constitution of India emphasises that free

legal service is an inalienable element of ‘reasonable, fair
and just’ procedure for without it a person suffering
from economic or other disabilities would be deprived of
the opportunity for securing justice. The right to free
legal services is, therefore, clearly an essential ingredient
of ‘reasonable, fair and just, procedure for a person
accused of an offence and it must be held implicit in the
guarantee of Article-21 of the Constitution. This is a
constitutional right of every accused person who is
unable to engage a lawyer and secure legal services on
account of reasons such as poverty, indignant situation
and the State is under a mandate to provide a lawyer to
an accused person if the circumstances of the case and
the needs of justice so requires, provided, of course, the
accused person does not object to the provision of such
lawyer.

Legal Services Authority Act, 1987

• Objectives of Legal Services Authority Act

Under Article 39A of the Constitution of India, free legal
aid and equal justice are provided to all citizens by
appropriate legislation, schemes or other means to
ensure that no citizen is denied access to justice on the
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basis of economic disadvantage or in any other way. The
Legal Services Authorities Act, 1987 was enacted as a
consequence of this constitutional provision with the
primary objective of providing free and competent legal
services to the weaker sections of society in the country.

• Types of services under Legal Services Authority

Act
The Act provides many types of legal services to the
general public:

1. Free legal awareness

This Act is primarily intended for the public to make
them aware of laws and schemes issued by public
authorities. The Legal Service Authority teaches some
portions of the rules of law to the individuals. Legal
camps and legal aid centres are organized by authorities
so that the general public can seek advice from the legal
aid centres located near their homes or places of work.
The legal guides and centres can help address the
grievances of ordinary people as well.

• Free legal aid counsel

A person who wants to defend or le a case in a court of
law but does not have the means to hire an advocate can
seek the assistance of a free legal aid attorney. The Act
states that free legal aid counsel is available, and the
Council is responsible for assisting needy individuals to
obtain justice. By adopting and establishing this
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philosophy, the Indian Courts should be freed from the
burden of adjudicating the cases.

• Authorities Under the Legal Services Authorities

Act, 1987
The Legal Services Authorities Act, 1987 provides that
the Central Government shall constitute a body to be
called the National Legal Services Authority toe the
powers and perform the functions conferred on , or
assigned to, the Central Authority under this Act. A
nationwide network has been envisaged under the Act
for providing legal aid and assistance. National Legal
Services Authority is the apex body constituted to lay
down policies and principles for making legal services
available under the provisions of the Act and to frame
most effective and economical schemes for legal services.
It also disburses funds grants to State Legal Services
Authorities and NGOs for implementing legal aid
schemes and programmes. The Legal Services
Authorities Act, 1987 provides for the constitution of
‘State Legal Services Authority’. In every State a State
Legal Services Authority is constituted to give effect to
the policies and directions of the Central Authority
(NALSA) and to give legal services to the people and
conduct ‘Lok Adalats’ in the State. State Legal Services
Authorityi headed by the Chief Justice of the State High
Court who is its Patron-in-Chief. A serving or retired
Judge of the High Court is nominated as its Executive
Chairman.
‘District Legal Services Authority’ is constituted in every
District to implement Legal Aid Programmes and
Schemes in the District. The District Judge of the District
is its ex-of cio Chairman.

‘Taluk Legal Services Committees’ are also constituted

for each of the Taluk or Mandal or for group of Taluk or
Mandals to coordinate the activities of legal services in
the Taluk and to organise Lok Adalats. Every Taluk Legal
Services Committee is headed by a senior

Civil Judge operating within the jurisdiction of the

Committee who is its ex-of cio Chairman.

The main responsibilities of NALSA are the following:

• Through legal aid camps, the organization promotes

legal aid in slums, rural and labour colonies, as well
as disadvantaged areas. It plays an important role in
providing education about the rights and needs of
the people who live in such areas. Lok Adalats are
also formed by the authority to settle disputes
between these people.
• Amongst other things, it is primarily concerned with
providing legal services through clinics in law
colleges, universities, etc.
• Arbitration, mediation, and conciliation are all
methods that are used by these organizations to
settle disputes.
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 • The organisation provides grant aid to institutions
that provide social services at the grassroots level to
marginalised communities from various parts of the
country.
• Research activities are also conducted to improve
legal services for the poor.
• Ensures that citizens commit to the fundamental
duties they have been entrusted with.
• As part of the proper implementation of the schemes
and programmes, they tend to evaluate the
effectiveness of the actions taken for the legal aid
problems at speci c intervals so that the correct
functions are being performed.
• Through the policy and scheme they laid down, the
body ensures that the legal services could be made
available to the general public. Through these
schemes, the body is able to provide the most
economical and effective legal services
• Financial matters are handled by this body, and the
funds allocated by it are allocated to respective
district and state legal services authorities.
In NALSA v. Union of India (2014) the National Legal
Services Authority of India (NALSA) led this case to
recognize those who are outside the binary gender
distinction, including individuals who identify as “third
gender”. There was a question that the Court had to
address regarding the recognition of people who do not
t into the male/female binary as “third gender”
individuals. During the discussion, the panel deliberated
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whether ignoring non-binary gender identities
constitutes an infringement of Indian Constitutional
rights. For developing its judgment, the panel referred to
an “Expert Committee on Transgender Issues”
established under the Ministry of Social Justice and
Empowerment.

• Eligibility criteria for free legal aid

There was even an item on the committee’s (headed by
Justice PN Bhagwati) agenda on the eligibility criteria for
the people to qualify for free legal aid, which has been
also mentioned in the Code of Criminal Procedure, 1973
under Section 304 to provide free and competent legal
assistance to a marginalised member of the society at the
expense of the state. As established in Hussainara
Khatoon v. State of Bihar (1979), legal aid will be
provided at the expense and cost of the state to
marginalised groups within society, and the state is
required to make such assistance available to the
accused.

In a similar vein, the Supreme Court has also ruled

in Suk Das v. Union Territory of Arunachal Pradesh
(1986) that an accused who cannot afford legal aid may
have his or her conviction set aside on socio-economic
grounds.

The following are the people eligible for free legal aid
under Section 12 of the Act:
 • A member of a Scheduled Caste or Scheduled Tribe;
• A victim of traf cking in human beings or beggars
as referred to in Article 23 of the Constitution;
• A woman or a child;
• A person with a disability as de ned in Section 2(i)
of the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full
Participation) Act, 1995;
• A person under circumstances of undeserved want
such as being a victim of a mass disaster, ethnic
violence, caste atrocity, ood, drought, earthquake or
industrial disaster; or
• An industrial workman; or
• In custody, including custody in a protective home
within the meaning of Section 2(g) of the Immoral
Traf c (Prevention) Act, 1956 or in a juvenile home
within the meaning of Section 2(j) of the Juvenile
Justice Act, 1986 or in a psychiatric hospital or
psychiatric nursing home within the meaning of
Section 2(g) of the Mental Health Act, 1987; or
• In receipt of annual income less than rupees nine
thousand or such other higher amount as may be
prescribed by the State Government, if the case is
before a court other than the Supreme Court, and
less than rupees twelve thousand or such other
higher amount as may be prescribed by the Central
Government, if the case is before the Supreme Court.
Lok Adalat
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‘Lok Adalat’ is a system of conciliation or negotiation. It
is also known as ‘people’s court’. It can be understood as
a court involving the people who are directly or
indirectly affected by the dispute or grievance. ‘Lok
Adalat’, established by the government settles dispute
through conciliation and compromise.

The First ‘Lok Adalat’ was held in Chennai in 1986. ‘Lok

Adalat’ accepts the cases which could be settled by
conciliation and compromise and pending in the regular
courts within their jurisdiction.

Lok Adalat under Legal Services Authority Act, 1987

Section 19 of the Act provides for the establishment of

Lok Adalats. Legal service authorities at all levels,
including the central, state, and district levels, shall hold
Lok Adalats. Lok Adalats serve as an alternate dispute
resolution system. Their purpose is to settle cases that are
pending or that have not been heard in the courts. It
consists of judicial of cers or an authorized person
under the jurisdiction of the state, central government, or
local government. Following the conciliation of disputes
between the parties and the agreement of the parties, the
award is handed down by conciliators in accordance
with Section 21 of the Act. The award has the same legal
effect as a court decision.

Scope of Lok Adalat

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Unlike the Supreme Court, Lok Adalat is extremely
broad to incorporate most of the cases pending before it
as well as new cases that will be led in the near future
to be settled. The Lok Adalat does not have jurisdiction
over cases relating to offences that cannot be
compounded under any law. The Lok Sabha does not
refer such matters to committees without giving the
other party a reasonable opportunity to be heard. The
Lok Adalat proceeds to resolve any case referred to it
and tries to negotiate a mutually acceptable outcome
between the parties involved with the case. Whenever a
Lok Adalat decides a case before it, it adopts the most
extreme efforts for a trade-off or settlement. The
following points elaborate on the scope of Lok Adalats:

• If no settlement or compromise is reached by the

parties after the Lok Adalat passes, no order is given.
• A reference will be sent automatically to the Court
that drew up the reference for disposition. Those
involved in the dispute are urged to seek redressal in
courts.
• If the terms proposed by the bench do not satisfy the
parties, the Lok Adalat cannot be forced to
compromise or reach a settlement. Orders from Lok
Adalats are de nitive and restrict the parties.
• An order passed by a judge is a satisfactory means of
stopping the proceedings that demand justice.
• Lok Adalats have enough powers under the Act to
make justice without compromising the quality of
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 their awards. The Lok Adalat’s nal order is
considered judicial since it is given the status of a
decree.
• A Civil Court recognizes it as a form of evidence and
is given the power to summon, discover, and get an
af rmation.
In the case of P.T. Thomas v. Thomas Job (2005), the
Apex Court speci cally explained what Lok Adalat is.
According to the Court, Lok Adalat is an ancient form of
adjudicating system that once predominated in India,
and its validity has not been questioned even today.
According to Gandhian principles, the term Lok Adalat
means “People’s Court”. It is an essential component of
alternative dispute resolution. If the dispute is resolved
at Lok Adala, there is no court fee, and if it is already
paid, the fee will be refunded.

According to the case of B.P. Moideen Sevamandir and

others v. AM Kutty Hassan (2008), the parties can
communicate directly through their attorneys, which is
far more convenient than speaking in a regular
courtroom. Because Lok Adalats are dynamic, they are
able to balance the interests of both parties and pass
orders that both sides nd acceptable.

Need of Lok Adalats

As we know that justice delayed is justice denied. This

statement becomes true if we see the backlog of pending
cases before courts of different hierarchy. It resulted into
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 delay Justic in India. Mounting arrears of cases has
brought judiciary and the judicial process at the verge of
collapse. In this given state of affairs the mechanism of
Lok Adalats is the only option left with the people resort
to for availing cheap and speedy justice. Lok Adalats
effectively deal with the magnitude of arrears of cases.
‘Lok Adalat’ has in view the social goals of ending
bitterness rather than pending disputes restoring peace
in the family, community and locality.

So ‘Lok Adalat’ is favorable to poor sections of the

society.

Functions of Lok Adalat

The following are the functions of Lok Adalat:

• Lok Adalat members should be impartial and fair to

the parties.
• Lok Adalat is responsible for handling pending cases
in court. In the case of a Lok Adalat settlement, the
court fee paid to the court on the petition will be
reimbursed
• When ling a dispute with Lok Adalat, you do not
have to pay a court fee.
Types of Lok Adalat

Lok Adalats can take the following forms:

1. National level Lok Adalat

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The Lok Adalat held at the national level is held
regularly throughout the country at the Supreme Court
level and taluk level, where thousands of cases are
disposed of. Every month a different topic is discussed in
this Adalat.

• Permanent Lok Adalat

The body is governed by Section 22B of the Act. There is
a mandatory pre-litigation mechanism in Permanent Lok
Adalat that settles disputes concerning public utilities
such as transport, telegraph, postal service, etc. As a
result of the case Abdul Hasan and National Legal
Services Authority v. Delhi Vidyut Board and other
(1999), the courts directed that permanent Lok Adalats be
established.

Permanent Lok Adalats are charged with resolving

public utility disputes quickly. Therefore, if parties
neglect to show up at the settlement or compromise, then
it has a further advantage of choosing the dispute based
on merit. In this way, the possibility of postponement in
the resolution of questions is eliminated. Rather than
following the formal procedure for resolving disputes, it
is bound to follow the principle of natural justice in order
to save time.

• Mobile Lok Adalat

Mobile Lok Adalat is a method of settling disputes that
travels from place to place. Over 15.14 lakh Lok Adalats
have been held in the country as of 30th September 2015,
and over 8.25 crore cases have been settled.

1. Mega Lok Adalat

The Mega Lok Adalat is an ad hoc body that is
constituted at the state level on a single day in all courts.

• Daily Lok Adalat

On a daily basis, these Lok Adalats are held.

• Continuous Lok Adalat

It is held continuously for a speci c number of days.

Jurisdiction of Lok Adalats

Lok Adalats fall under the jurisdiction of the courts

which organize them, thus, they cover any cases heard
by that Court under its jurisdiction. This jurisdiction
does not apply to cases regarding offences which are not
compoundable by law and the Lok Adalats cannot
resolve these cases. The respective courts may accept
cases presented to them by parties concurring that the
dispute should be referred to the Lok Adalat. The Courts
may accept such cases in situations where one party
makes an application to the court for the referral of the
case to the Lok Adalat and the court might consider that
there is a possibility of compromise through the Act.

PLEA BARGAINING- MEANING

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 “Plead Guilty and ensure Lesser Sentence” is the shortest
possible meaning of Plea Bargaining. Plea Bargaining
fostered by the Indian Legislature is actually the child of
the West. The concept has been very much alive in the
American System in the 19th century itself. Plea
Bargaining is so common in the American System that
every minute a case is disposed in the American
Criminal Court by way of guilty plea. England, Wales,
Australia and Victoria also recognises ‘Plea Bargaining’.

‘Plea Bargaining’ can be de ned as “Pre-Trial

negotiations between the accused and the prosecution
during which the accused agrees to plead guilty in
exchange for certain concessions by the prosecution”. It
gives criminal defendants the opportunity to avoid
sitting through a trial risking and conviction on the
original more serious charge. For example, a criminal
defendant charged with a theft charge, the conviction of
which would require imprisonment in state prison, may
be offered the opportunity to plead guilty to a theft
charge, which may not carry jail term.

Types of ‘Plea Bargaing’

‘Plea Bargaining’ may be divided into three broad types:

• ‘Charge Bargaining’ is a common and widely

known form of plea. It involves a negotiation of the
speci c charges or crimes that the defendant will
face at trial. Usually, in return for a plea of guilty to a
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 lesser charge, a prosecutor will dismiss the higher or
other charge(s). For example, in return for
dismissing charges for rst-degree murder, a
prosecutor may accept a guiltyp for manslaughter
(subject to court approval).
◦ ‘Sentence Bargaining’ involves the agreement
to a plea of guilty in return for a lighter
sentence. It saves the prosecution the necessity
of going through trial and proving its case. It
provides the defendant with an opportunity for
a lighter sentence.
◦ ‘Fact Bargaining’ is the least used in a
prosecution in which the Prosecutor agrees not
to reveal any aggravating factual circumstances
to the court because that would lead to a
mandatory minimum sentence or to a more
severe sentence under sentencing guidelines.
JUDICIAL REVIEW

Legislatures, one of the organs of the government, is

vested with the power to make laws, which is, however,
not absolute in nature. Because it does not become
absolute that no one can challenge any arbitrary law, a
concept known as judicial review came into existence
which is the process wherein the Judiciary review the
validity of laws passed by the legislature.

The power of judicial review comes from the

Constitution of India itself (Article 13) & it is evoked to
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safeguard & enforce the fundamental rights under Part
III of the Constitution. Article 13 prohibits the Parliament
and the state legislatures from making laws that “may
take away or abridge the fundamental rights”
guaranteed to the citizens of the country & the term ‘law’
includes any “Ordinance, order, bye-law, rule,
regulation, noti cation, custom or usage” having the
force of law in India.

Examples of Judicial Review: Section 66A of the IT Act

was struck down as it was against the Fundamental
Rights under the Indian Constitution.

JUDICIAL ACTIVISM

Judicial activism refers to the use of judicial authority by

the Judiciary to de ne and enforce what is for the bene t
of society. Historian Arthur Schlesinger, Jr. coined this
term in 1947, and its foundation in India was laid down
by Justice V.R Krishna Iyer, Justice P.N Bhagwati, Justice
O.Chinnappa Reddy, and Justice D.A Desai.

Judiciary cannot function as legislature, but by the

concept of judicial activism, it has successfully brought
reforms, new concepts, policies etc.

However, too much interference by the Judiciary in this

process will become judicial overreach.

Examples of Judicial Activism-

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 • Mechanisms with no constitutional backing like
Public Interest Litigation, not proposed by the
Legislature, but the Judiciary came up with this
concept. It has strict locus standi; anyone can le
PIL, which is led in the form of writ petition but
only in the High Courts and Supreme Court.
• Appointment of Judges by the Collegium system in
which senior most Judges appoints another Judge is
considered judicial activism by the Judiciary.
• Reforms in Cricket: The Supreme Court has been
trying its best to restructure the Board for the
Control of Cricket in India (BCCI) although, the
BCCI is a private body. SC had also set up a Mudgal
committee and the Lodha Panel to investigate the
betting charges and suggest reforms which must be
adhered to.
• SIT on Black money: The Supreme Court ordered the
UPA government to set up Special Investigation
Team (SIT) to investigate black money. Though the
UPA government did not take action on this
decision, the NDA government has now ful lled the
task.
Maneka Gandhi v. UOI (1978), The court iterated the
term ‘procedure established by law’ under Article 21 of
the Constitution by repositioning it as ‘due process of law’
meaning that the procedure which is established by the
law must be just, fair and reasonable. It is the legal
requirement that the state must respect all of the legal
rights owed to a person.
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Kesavananda Bharati case (1973): The Supreme Court of
India declared that the executive had no right to interfere
and tamper with the basic structure of the constitution.

Sheela Barse v. State of Maharashtra (1983): A letter by a

Journalist addressed to the Supreme Court addressing
the custodial violence of women prisoners in Jail. The
court treated that letter as a writ petition and took
cognisance of that matter.

I.C. Golaknath & Ors vs State Of Punjab & Anr.

(1967): The Supreme Court declared that Fundamental
Rights enshrined in Part III are immune and cannot be
amended by the legislative assembly.

Criticism of Judicial Activism

It created a controversy over the supremacy between

Parliament and Supreme Court. It is alleged to disturb
the delicate principle of separation of powers & checks
and balances.

JUDICIAL OVERREACH

There is a very thin line between Judicial activism and

Judicial Overreach. In layman’s term, when Judicial
activism surpasses its limits and becomes Judicial
adventurism, it is known as Judicial Overreach. When
the judiciary oversteps its powers, it may intervene with
the proper functioning of the legislative or executive
organs of government.
This is highly undesirable under Indian democracy as
there has to be a proper separation of power between the
three organs of the government, which even forms the
feature of our Indian Constitution. So, it destroys the
spirit of separation of powers.

Examples of Judicial Overreach: What makes any action

activism or overreach is based upon individual’s
perspectives. But generally speaking, striking down of
NJAC bill and the 99th constitutional amendment and
bringing collegium system for appointment of judges, or
the order passed by the Allahabad High Court making it
compulsory for all Bureaucrats to send their children to
government school or misuse of the power to punish for
contempt of court etc. are all considered as Judicial
Overreach.

Difference between Judicial

Review, Judicial Activism and
Judicial Overreach

JUDICIAL RESTRAINT

A concept under which the judges power is limited to

strike down a law as the proponents of judicial restraint
have mostly stated that the Supreme Court has taken the
position of the Legislature through its activism. It has
also been argued that the Supreme Court has obviously
overstepped its bounds of the other parts of government.
In Judicial restraint, Judges should look to the original
intent of the writers of the Constitution.

Issues with the Indian legal system

One of the most crucial challenges with the Indian

judicial system is the delay of cases. The major source of
pendency is the increasing number of new cases and the
slow rate at which they are resolved. Over 4.7 crore
lawsuits are pending in courts at all levels of the
judiciary as of May 2022. Nearly 1,82,000 cases have been
outstanding for more than 30 years, with 87.4 per cent in
subordinate courts and 12.4 per cent in High Courts.
According to data from the Department of Justice’s
National Judicial Data Grid database, courts recorded a
27 per cent increase in pendency between December 2019
and April 2022.

Presently, there is an inadequate number of judges

available to resolve disputes. Statistics of the Department
of Justice show that there are 400 vacancies with a
working force of 708 as of June 2022 for the Judges in the
Supreme Court of India and the High Courts which is
not suf cient to clear the backlog of pending cases in
India.

Reforms needed in the Indian legal system

With the country’s fast development, there is an urgent

need to reform the judicial system as well. There is a
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legal maxim that says justice delayed is justice denied. It
is the basis for the right to a quick trial and equality of
treatment intended to improve the legal system because
of the aggrieved party who experienced the injury hopes
for fast and ef cient redressal of the dispute. The legal
issues are resolved too slowly either because the cases
are too complex, the existing system is too complex, or
due to the overburden of multiple cases.

Reforms should strive to improve the administrative

functions of the judiciary in a robust manner. To increase
judicial productivity, the Centre recommended measures
such as an increase in the number of working days for
courts, establishing fast-track courts, and establishing
Indian Courts and Tribunal Services (ICTs).

The executive branch, local government, various

economic improvements, and administrative reforms
must all be considered as part of a well-coordinated and
integrated ancillary reform initiative that ensures the
judicial system’s improvement. Most signi cantly,
judicial changes in the country will be impossible to
accomplish without institutional balance, unity, and the
state’s ability to execute regulatory, supervisory,
economic, civil society, and public democratic control
functions.
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