THE LEGAL SYSTEMS

To a fresh law student hearing the word ‘common law’ would read
ambiguous meaning. It is only those that have been a little
knowledgeable in the legal field that would understand the meaning of
the phrase ‘common law’. The pertinent question then is how do we
arrive at the legal meaning of common law. This question and many
others are what would be put to rest in this paper. This paper would
make us understand what a legal system is, five types of legal system
would be listed and two will be expatiated upon.

What Is A Legal System?

A system has been defined as considered principles or procedures of
classification. Legal has also been defined as something of or relating
to law; falling within the province of law. Thus, from the above
definition of ‘legal’ and ‘system’, a legal system can be defined as the
principles or procedures for the classification of laws, matters or
procedure relating to them. It can also be defined as a body of rules
including the principles, rules or doctrines associated with them that
have the force of law in a given society.

It should be noted that from a technical standpoint, there are as much

legal systems as there are sovereign independent countries. For
example, Nigeria has its own legal system which has been said to
‘consist of each totality of laws or the legal rules and machinery which
operate within Nigeria as a sovereign and independent African
country. However, on a larger scale sovereign countries are grouped
into larger legal system classifications due to them sharing similar
fundamental characteristics.

The grouping of countries into legal system doesn’t necessarily mean

that all their laws are identical. These individual systems are grouped
into larger classifications because they share similar fundamental
principles. For example, one similar characteristic of common law
legal system is the doctrine of judicial precedent.
Common Law Legal System 
The common law legal system is one which revolves around the
principle of stare decisis which means ‘let the decision stand’. It is
further explained as a golden rule which states that decisions of higher
courts are binding on lower courts and decisions of courts of
coordinate jurisdiction are for all intents and purposes binding
between them.

Historical Development Of The Common Law

Legal System
The period of the historical development of common law can be traced
to the Norman conquest of the British isles in 1066 AD. Before the
Norman conquest, the indigenous British peoples had their indigenous
customary laws. In 1154 Henry II became king. He had the practice of
sending Judges from his central court to hear disputes throughout the
realm. When these judges returned from their tour, they would discuss
the various customary laws they had encountered in their journeys.
The judges would then agree on which of these customs were more
reasonable and they would then be applied in subsequent disputes
throughout the realm. This is why the common law is usually
described as having judge made laws. Judges made law operated as
the primary source of law until parliament acquired the powers to
make statutes. It should however be noted that most of these statutes
are in line with the fundamental tenets of the judge made laws.

The common law legal system was transferred by England to her

colonies. This they did with the aid of reception laws. One of the
reception statutes in Nigeria is S.32 of the Interpretation Act which
provides that the rules of common law, doctrines of equity and
statutes of general application that were applicable before 1st January
1900 shall be applicable in Nigeria. Countries that practise common
law include: Nigeria, United states of America(excluding Louisiana),
Canada(excluding Quebec), India and most other former British
colonies.

Features Of The Common Law Legal System

1. It operates the doctrine of judicial precedent. In the case of Global
transport vs free enterprises Nig ltd,  judicial precedent was described
as meaning that decisions of courts of superior record are binding and
the decisions of courts of coordinate jurisdiction are for all intents and
purposes binding between them.

2. The method of adjudication is adversarial in contrast to

inquisitorial. This means that judges are not expected to leave the
bench and come into the field.

3. Unlike civil law, most of the laws in common law legal system are
not codified.

4. Also, the jury system originated in common law. It is however not

practised in Nigeria.

5. Unlike the civil law its judges are not career judges. Before a person
can be a judge in a common law legal system he has to have been a
practising lawyer for a while. This can be seen in the provisions of
S.250(3) CFRN 1999 provides that for a person to be judge of the high
court, he must have been a legal practitioner for not less than 10 years.

6. In the common law, judges make law through their various

decisions.

The Civil Law Legal  System 

Civil law legal system is one which originated from the Roman empire
and whose primary feature is codification. Also, in comparison to
common law, the doctrine of judicial precedents does not apply in civil
law courts. Historically, civil law encompasses the legal ideas and
systems derived from the code of Justinian but heavily overlaid by
Napoleonic, Germanic, Canonical, feudal and local practises as well
doctrinal strains such as natural law, codification and legal positivism.

Historical Development Of Civil Law Legal System

The civil law legal system takes the Roman law as its major inspiration
and in particular the code of Justinian. The Justinian Code provided a
sophisticated model for contracts, rules of procedure, family law, wills
and a strong monarchical constitutional system.

Roman law continued uninterrupted in the Byzantine empire until its

fall in the 15th century. It spread due to the fact that it became
adopted by most of the former territories of the Byzantine empire and
the Western European powers. It also spread because its students
were the only trained lawyers.

Consequently, Roman law was applied as secondary law when the

local laws were not adequate. Eventually, the works of glossators and
commentators led to the development of the common body of laws
that were adopted in continental Europe. Most European countries
finally promulgated these laws as their positive law and codified it. An
example is the Napoleonic code of France. Countries that practise civil
law include France, Germany, Norway, Netherlands and most of the
rest of continental Europe.

Features Of The Civil Law Legal System

1. The influence of scholars on the evolution of civil law is very
significant.  It is usually said that while common law is judge made,
civil law is university made.

2. The laws in civil law legal systems are largely codified. Codification
is the compilation of laws into a single document according to subject
matter.

3. The doctrine of judicial precedent doesn’t apply in civil law.

4. The judiciary in civil law is made up of career judges in contrast to
common law where judges have to be initially lawyers.

5. Another feature is that in civil law the administration of justice is

inquisitorial in contrast to the adversarial nature of common law.

 
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THE INDIAN
LEGAL SYSTEM
The Indian Legal System is one of the oldest legal systems in the entire
history of the world. It has altered as well as developed over the past
few centuries to absorb inferences from the legal systems across the
world. The Constitution of India is the fountainhead of the Indian Legal
System. It demonstrates the Anglo-Saxon character of judiciary which is
basically drawn from the British Legal System. India is a land of
diversified culture, local customs and various conventions which are not
in opposition to the statue or ethics. People of different religions as well
as traditions are regulated by all the different sets of personal laws in
order to relate to family affairs.
The judicial system or Indian legal system is a unique feature of the
Indian Constitution. It is an integrated system of courts that administer
both state and union laws. The Supreme Court of India is the uppermost
part in the Indian legal system. Under this, each state or a group of
states possesses High Courts. There are several subordinate courts
under these High Courts. India has an organic law as consequence of
common law system. Through judicial pronouncements and legislative
action, this has been fine-tuned for Indian conditions. The Indian legal
system’s move towards a social justice paradigm, though undertook
independently, can be seen to mirror the changes in other territories
with common law system.
This paper will focus on the drastic changes and their influence in
modern Indian legal system because India has been the home of four
major legal traditions, Hindu, Muslim, British, and that of modern,
independent India. Although each of the latter three legal systems was
established in India as the result of dramatic political change, none has
ever totally supplanted its predecessors. Important elements of the
earlier traditions remained in each new system, and ail of the earlier
traditions are present in contemporary Indian law.
 
 
INTRODUCTION
“To devil among the laws of India is like bathing in the holy waters of
Triveni.”
The legal system of a country is part of its social system and reflects the
social, political, economic and cultural characteristics of the society. It is
therefore, difficult to understand the legal system outside the socio
cultural milieu in which it operates. In the case of India the legal system
is still alien to the majority of the Indian’s whose legal culture is more
indigenous and whose contact with the formal legal system (the
imported British Model) is marginal if not altogether non-existent. The
language, technicality and procedure of the inherited legal system are
indeed factors, which limit access to justify for the illiterate,
impoverished masses of our country. Nevertheless, the rights and
benefits conferred by the laws and constitution offer opportunity for
those very people to enjoy the fruits of a welfare democracy which the
people of India have given unto themselves on the 26th January, 1950. It
is in this context familiarity with law and its processes become essential
to every Indian, rich or poor. Man or woman, young or old.
A level system consists of certain basic principles and values (largely
outlined by the constitution), a set of operational norms including rights
and duties of citizens spelt out in the laws- Central, State and Local,
institutional structures for enforcements of laws and a cadre of legal
personnel endowed with the responsibility of administering the system.
India is a federation of 29 states and 7 Union Territories.  The President
is the head of the Union executive.  He acts on the advice of the Union
cabinet headed by a prime minister who is responsible to the parliament
of India.  The parliament is bicameral: Council of States or Upper House
whose main membership is elected by state legislatures and the House of
People or Lower House consisting of members elected directly by the
people in general elections.  The democratic system operates in a
manner similar to the British system of parliamentary democracy. A
single integrated system of courts administers both union and state laws. 
The common law system in India is a legacy of the British where the
doctrine of stare decisis [1]rules.  The Supreme Court of India, seated in
New Delhi, is the highest court in the entire judicial system.  Each state,
or a group of them, has a High Court, which is also a court of record and
exercises administrative control over the subordinate judiciary.  It, too,
has the power to issue writs in exercise of extraordinary jurisdiction and
is the appellate court from decisions of the lower courts in the state.
Each state is divided into districts where the Court of District and
Sessions Judge is the highest court.  He has dual role.  As a District
Judge, he adjudicates in civil disputes and as Sessions Judge, he
adjudicates criminal disputes.  Below him are Sub-Judges for civil cases
and Magistrates for criminal cases.  The Chief Judicial Magistrate, in
criminal matters, and Senior Sub-Judge, on the civil side, with lower
rungs of magistrates and sub-judges, constitute the district level
judiciary under the superintendence of the District Court.  Thus, there
are four tiers of judiciary.
Other quasi-judicial tribunals (e.g., labor tribunal, administrative
tribunal) function to grant relief in labor disputes or decide grievances of
civil servants.
 A legal system consist of –

1. Certain basic principles and values, largely outlined by the

constitution.
2. A set of operational norms including rights and duties of citizens
spelt out in the laws.
3. Institutional structures for enforcement of laws.
4. A cadre of legal personnel for administering the system.

 
 

1. 1 HISTORICAL ASPECT

1.1.1 LAW AND LEGAL SYSTEM IN VEDIC PERIOD.

Law in India has evolved from religious prescription to the current constitutional and legal
system we have today, traversing through secular legal systems and the common law[3].

India has a recorded legal history starting from the Vedic ages and some sort of civil law system
may have been in place during the Bronze Age and the Indus Valley civilization. Law as a matter
of religious prescriptions and philosophical discourse has an illustrious history in India.
Emanating from the Vedas, the Upanishads and other religious texts, it was a fertile field
enriched by practitioners from different Hindu philosophical schools and later by Jains and
Buddhists.

Secular law in India varied widely from region to region and from ruler to ruler. Court systems
for civil and criminal matters were essential features of many ruling dynasties of ancient India.
Excellent secular court systems existed under the Mauryas[4]and the Mughals[5]  with the latter
giving way to the current common law system.

1.1.2. LEGAL SYSTEM IN ANCIENT INDIA.

India has the oldest judiciary in the world. No other judicial system has a more ancient or exalted
pedigree.[6] British Henry Maine described the legal system of ancient India “as an apparatus of
cruel absurdities”. An Anglo-Indian jurist made the following remark about what he called “the
oriental habits of life” of the Indians before the British turned up in India: “It (British rule in
India) is a record of experiments made by foreign rulers to govern alien races in a strange land,
to adapt European institutions to Oriental habits of life, and to make definite laws supreme
amongst peoples who bad always associated government with arbitrary and uncontrolled
authority[7].” Alan Gledhill, a retired member of the Indian Civil Service, wrote that when the
British seized power in India, “there was a dearth of legal principles[8].”

These may be due to sheer ignorance, or imperialist self-interest, or contempt for Indian culture
and civilization which was a part of the imperialist outlook which dominated British Jurists,
historians, and thinkers in the heyday of imperialism. But the effect of this miss representation,
which has few parallels in history, was to create a false picture of the Indian judicial and legal
system both in India and outside.

Indian jurisprudence was found on the rule of law, that the King himself was subject to the
law,that arbitrary power was unknown to Indian political theory and jurisprudence and the kind’s
right to govern was subject to the fulfilment of duties the breach of which resulted in forfeiture
of kingship,  the judges were independent and subject only to the law, the ancient India had the
highest standard of any nation of antiquity as regards the ability, learning, integrity, impartiality,
and independence of the judiciary, and these standards have not been surpassed till today, the
Indian judiciary consisted of a hierarchy of judges with the Court of the Chief
Justice(Praadvivaka) at the top, each higher Court being invested with the power to review the
decision of the Courts below that disputes were decided essentially in accordance with the same
principles of natural justice which govern the judicial process in the modern State today, that the
rules of procedure and evidence were similar to those followed today , that super natural modes
of proof like the ordeal were discourage.

In criminal trials the accused could not be punished unless his guilt was proved according to law
that in civil cases the trial consisted of four stages like any modern trial – plaint, reply, hearing
and decree, that such doctrines as res-judicata[9] (Prang Nyaya) were familiar to Indian
jurisprudence , that all trials, civil or criminal, were heard by a bench of several judges and rarely
by a judge sitting singly, that the decrees of all courts except the King were subject to appeal or
review according to fixed principles ; that the fundamental duty of the Court was to do justice
“without favour or fear”.

 2. RULE OF LAW IN ANCIENT INDIA.

Was there a rule of law in ancient India? In the Mahabharata, it was laid down “.A King who
after having sworn that he shall protect his subjects fails to protect them should be executed like
a mad dog.” Also “The people should execute a king who does not protect them, but deprives
them of their property and assets and who takes no advice or guidance from any one. Such a king
is not a king but misfortune.”  These provisions indicate that sovereignty was based on an
implied social compact and if the King violated the traditional pact, he forfeited his kingship.

Coming to the historical times of Mauryan Empire[10],Kautilya describes the duties of a king in
the Arth-shastra thus : “In the happiness of his subjects lies the King’s happiness; in their welfare
his welfare; whatever pleases him he shall not consider as good, but whether pleases his people
he shall consider to good.” The Principle enunciated by Kautilya was based on a very ancient
tradition which was already established in the age of the Ramayana[11]. Rama, the King of
Ayodhya, was compelled to banish his queen, whom he loved and in whose chastity he had
complete faith, simply because his subjects disapproved of his having taken back a wife who had
spent a year in the house of her abductor.

3. JUDICIARY IN ANCIENT INDIA.

With this introductory warning, the endeavour to describe the judicial system of ancient India
According to the Artha-shastra of Kautilya, who is generally recognised as the Prime Minister
of the first Maurya Emperor (322-298 B.C.), the realm was divided into administrative units
called Sthaniya,Dronamukha, Khrvatika and Sangrahana (the ancient equivalents of the modern
districts, tehsilsandParganas). Sthaniya was a fortress established in the centre of eight hundred
villages, a dronamukha in the midst of 400 villages, a kharvatika in the midst of 200 villages and
a sangrahana in the centre of ten villages, Law courts were established in each sangrahana, and
also at the meeting places of districts(Janapadasandhishu). The Court consisted of three jurists
(Dhramastha) and three ministers (Amatya).

This suggests the existence of circuit courts, for it is hardly likely that three ministers were
permanently posted in each district of the realm. The great jurists, Manu, Yajn-valkya,
Katyayana, Brihaspati and others, and in later times commentators like VachaspatiMisra and
others, described it in the judicial system and legal procedure, which prevailed in India from
ancient times till the close of the Middle Ages.

3.1 HIERARCHY OF COURTS IN ANCIENT INDIA.

According to Brihaspati Smiriti, there was a hierarchy of courts in Ancient India beginning with
the family Courts and ending with the King. The lowest was the family arbitrator. The next
higher court was that of the judge; the next of the Chief Justice who was called Praadivivaka, or
adhyaksha; and at the top wasthe King’s court. The jurisdiction of each was determined by the
importance of the dispute, the minor disputes being decided by the lowest court and the most
important by the king. The decision of each higher Court superseded that of the court below.

According to VachasatiMisrap, “The binding effect of the decisions of these tribunals, ending
with that of the king, is in the ascending order, and each following decision shall prevail against
the preceding one because of the higher degree of learning and knowledge”[12]

It is noteworthy that the Indian judiciary today also consists of a hierarchy of courts organized on
a similar principle-the village courts, the Munsif, the Civil Judge, the District Judge, the High
Court, and finally the Supreme Court which takes the place of the King’s Court. The institution
of family judges is noteworthy. The unit of society was the joint family which might consist of
four generations. Consequently, the number of the member of a joint family at any given time
could bevery large and it was necessary to settle their disputes with firmness combined with
sympathy and tact.

 It was also desirable that disputes should be decided in the first instance by an arbitrator within
the family. Modern Japan has a somewhat similar system of family Courts. The significance of
the family courts is that the judicial system had its roots in the social system which explains its
success.

The Kingwas required to take the oath of impartiality, and decide cases without bias or
attachment. According to Katyayana: “The king should enter the court-room modestly dressed,
take his seat facing east, and withan attentive mind hear the suits of his litigants. He should act
under the guidance of his Chief Justice (Praadvivaka), judges, ministers and
the Brahman members of his council. A king who dispenses justice in this manner and according
to law resides in heaven”.

The code of conduct prescribed for the king when acting as a judge was very strict and he was
required to be free from all “attachment or prejudice” Says Nerada: “If a king disposes of law
suits (Vyavaharan) in accordance with law and is self-restrained (in court), in him the seven
virtues meet like seven flames in the fire”Narada enjoins that when the king occupies the
judgment seat (Dharmasanam), he must be impartial to all beings, having taken the oath of the
son of Vivasvan. (The oath of Vivasvan is the oath of impartiality: the son of Vivasvan is Yama,
the god of death, who is impartial to all living beings).

4. LEGAL SYSTEM IN MEDIEVAL PERIOD.

After the disintegration of the Harsha Empire a veil of obscurity descends on the history of India
which does not lift till the Muslim invasion. The country was divided once more into small
kingdoms. But this did not result in any great change in the judicial system which had taken roots
during the preceding thousands of years. The standards and ideals of justice were maintained in
each kingdom, in spite of political divisions, the unity of civilization was preserved, and the
fundamental principles of law andprocedure were applied throughout the country. This is
indicated by the fact that the great commentaries on law like Mitakshara and ShukarneetiSar
were written during this period and enjoyed an all-India authority. But the establishment of the
Muslim rule in India opened a new chapter in our judicial history. The Muslim conquerors
brought with them a new religion, a new civilization, and a new social system. This could not but
have a profound effect on the judicial system.

The ideal of justice under Islam was one of the highest in the middle ages. He said in the Quran,
[13] “Justice is the balance of God upon earth in which things when weighed are not by a particle
less or more. He appointed the balance that he should not transgress in respect to the balance,
wherefore observe a just weight and diminish not the balance”. He is further reported to have
said that to God a moment spent in the dispensation of justice is better than the devotion of the
man who keeps fast every day and says prayer every night for years. Thus the administration of
justice was regarded by the Muslim kings as a religious duty.

The Muslim kings in India bought with them high ideals. It is reported by Badaoni that during
the reign of Sultan Muhammad Tughlaq the Qadi dismissed a libel suit filed by the Kind himself
against Shaikhzada Jami, but no harm was done to him. (This however did not prevent the Sultan
fromexecuting the defendant without a trial)[14]. Individual Sultans had very high ideals of
justice.

 According to Barani, Balban regarded justice as the keystone of sovereignty “where in lay the
strength of the sovereign to wipe out the oppression”[15].

As a modern writers says, “The medival State in India as else here throughout its existence had
all the disadvantages of an autocracy-everything was temporary, personal, and had no basic
strength. The personal factor in the administration had become so pronounced that a slight
deviation of the head from the path of duty produced concomitant variations in the whole ‘trunk’.
If the King was drunk ‘his Magistrates were seen drunk in public’. Justice in not possible without
security, and the Sultans of Indian ever felt secure. Consequently, the democratic ideal of
government preached by Islam was unsecure in India.[16] During the Sultanate, Islamic
standards of Justice did not take root in India as an established tradition, unlike the judicial
traditions of ancient India which had struck deep roots in the course of several thousand years
and could not be uprooted by political divisions.

Under the Mughal Empire the country had an efficient system of government with the result that
the system of justice took shape. The unit of judicial administration was Qazi-an office which
was borrowed from the Caliphate. Every provincial capital had its Qazi and at the head of the
judicial administration was the Supreme Qazi of the empire (Qazi-ul-quzat). Moreover, every
town and every village large enough to be classed as a Qasba had its own Qazi. In theory,
a Qazi  had to be “a Muslim scholar of blameless life, thoroughly conversant with the
prescriptions of the sacred law[17].

According to the greatest historian of the Mughal Empire, “the main defect of the Department of
Law and Justice was that there was no system, no organization of the law courts in a regular
gradation from the highest to the lowest, nor any proper distribution of courts in proportion to the
area to be served by them.The bulk of the litigation in the country (excluding those decided by
caste, elders or village Panchayats mostly for the Hindus) naturally came up before the courts
of Qazis or Sadars.[18]” This view is not accepted by other writers.

According to Sircar, “all the Qazis of the Mughal period, with a few honourable exceptions, were
notorious for taking bribes. The Emperor was the fountain source of justice. He held his court of
justice every Wednesday and decided a few case selected personally by him but he functioned
not as an original court but as the court of highest appeal. There is overwhelming evidence that
all the Emperors from Akbar to Aurangzeb took their judicial function seriously and discharged
their duties Jahangir made a great show of it and his Golden Chain has become famous in
history. The weakness of Indo-Mohammedan Law, according to Jadunath Sircar, was that all its
three sources were outside India.

A relic of the usurpation of the Emperors’ power is the name Fauzdari given to criminal trials
even today. After the conquest of Bengal by the British the process of replacement of the Mughal
system of justice by the British began. But it took a long time. In fact, The Sadre Diwani Adalat
continued to function till it was replaced by the High Courts. The Mughal judicial system has left
its imprint on the present system, and a good part of our legal terminology is borrowed from it.
Our civil courts of first instance and called Munsifs, the plaintiff and the defendant are termed
Muddai and Muddaliya and scores of other legal terms remind us of the great days of the Mughal
Empire.

5. LAW AND LEGAL SYSTEM IN BRITISH PERIOD.

The common law system – a system of law based on recorded judicial precedents- 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 Chennai, Mumbai
and Kolkata respectively). Judicial functions of the company expanded substantially after its
victory in Battle of Plassey and by 1772 company’s courts expanded out from the three major
cities. In the process, the company slowly replaced the existing Mughal legal system in those
parts.

Following the First War of Independence in 1857,[19] the control of company territories in India
passed to the British Crown. Being part of the empire saw the next big shift in the Indian legal
system. Supreme courts were established replacing the existing many oral courts. These courts
were converted to the first High Courts through letters of patents authorized by the Indian High
Courts Act passed by the British parliament in 1862. Superintendence of lower courts and
enrolment of law practitioners were deputed to the respective high courts. During the Raj, the
Privy Council acted as the highest court of appeal. Cases before the council were adjudicated by
law lords of the House of Lords. The state sued and was sued in the name of the British
sovereign in her capacity as Empress of India.

During the shift from Mughal legal system, the advocates under that regimen, “vakils”, too
followed suit, though they mostly continued their earlier role as client representatives. The doors
of the newly created Supreme Courts were barred to Indian practitioners as right of audience was
limited to members of English, Irish and Scottish professional bodies. Subsequent rules and
statutes culminating in the Legal Practitioners Act of 1846 which opened up the profession
regardless of nationality or religion.

Coding of law also began in earnest with the forming of the first Law Commission. Under the
stewardship of its chairman, Thomas Babington Macaulay, the Indian Penal Code was drafted,
enacted and brought into force by 1862. The Code of Criminal Procedure was also drafted by the
same commission. Host of other statutes and codes like Evidence Act (1872) and Contracts Act
(1872).

6. LAW AND LEGAL SYSTEM AFTER INDEPENDENCE.

At the dawn of independence, the parliament of independent India was the forge where a
document that will guide the young nation was being crafted. It will fall on the keen legal mind
of B. R. Ambedkar[20] to formulate a constitution for the newly independent nation. The Indian
Bar had a role in the Independence movement that can hardly be overstated – that the tallest
leaders of the movement across the political spectrum were lawyers is ample proof. The new
nation saw its first leader in Jawaharlal Nehru, and a paternal figure in M. K. Gandhi, both
exemplary lawyers. Perhaps it is the consequent understanding of law and its relation to society
that prompted the founding fathers to devote the energy required to form a Constitution of
unprecedented magnitude in both scope and length.[21]

The Constitution of India is the guiding light in all matters executive, legislative and judicial in
the country. It is extensive and aims to be sensitive. The Constitution turned the direction of
system originally introduced for perpetuation of colonial and imperial interests in India, firmly in
the direction of social welfare. The Constitution explicitly and through judicial interpretation
seeks to empower the weakest members of the society.

India has an organic law as consequence of common law system. Through judicial
pronouncements and legislative action, this has been fine-tuned for Indian conditions. The Indian
legal system’s move towards a social justice paradigm, though undertook independently, can be
seen to mirror the changes in other territories with common law system. From an artifice of the
colonial masters, the Indian legal system has evolved as an essential ingredient of the world’s
largest democracy and a crucial front in the battle to secure constitutional rights for every citizen.
[22]

7. THE CONSTITUTION: THE FUNDAMENTAL LAW OF THE LAND.

The constitution of a country is variously describing depending upon the nature of the polity and
assumes the character of a federal (several independent units jointed together) or unitary form of
Government. India is declared to be a Socialist, Secular, Democratic, Republic. It is said to have
a quasi-federal structure. The Constitution of India represents the collective will more than 1000
million Indians and, as such, the reservoir of enormous power. It describes the methods by which
this power conferred on the State is to be exercised for the benefit of the people. In other words,
it is a political document, which distributes State power amongst different organs (Central and
State Governments.

Legislative, Executive and Judicial wings of each Government) and regulates its exercise in its
incidence on the people. The form of government is democratic and republican and the method is
parliamentary though adult franchise. The goals are spelt out in the Preamble itself. To achieve
this goal of dignity of the individual with justice, liberty and equality, the Constitution
guarantees certain Fundamental Rights and provides for its easy enforcement through the High
Courts and the Supreme Court. These basic Human Rights are expressly laid down in Articles 14
to 30 of the Indian Constitution.[23]

Further, towards achieving the goals set out in the Preamble,[24] the Constitution gives certain
Directives to the State to follow in its policies and programs. These Principles of State Policy
have been recognized to be as sacrosanct as the Fundamental Rights. In other words, they
together constitute a reference point for State action in every sphere. The Constitution envisages
a unique place for the judiciary in the country. Apart from overseeing the exercise of the State
power by the Executive and the Legislatures of the State and the Central Governments, the
Supreme Court and the High Courts are charged with the responsibility of effective protecting
the citizen’s rights through its writ jurisdiction. This offers a cheap and expeditious remedy to
the citizen to enforce the guaranteed rights. The Supreme Court recently liberalized the rules so
as to enable poor and illiterate citizens to have easy access to courts for enforcing their basic
rights.
The Rule of Law is supreme and the independence of judiciary is a living reality. These form the
bulwark of democracy and compel everyone to abide by the law in his/her own interest.
Constitutional government and the principles involved in it ought to be understood and
subscribed by every Indian if we are to succeed in our declared goals.

8. LAWS: CIVIL AND CRIMINAL.

The laws of the country are too numerous, varied and complex; they are bound to be as large as
life itself which is increasingly becoming complex in every sphere. In a welfare state like ours,
laws are all the more so because they are expected to regulate a variety of social and economic
activities so as to sub serve the common good. Inspired by the Constitution, Parliament, State
Legislatures and Local Councils make and unmake the laws day in and day out as the occasion
demands. Courts interpret them in specific fact situations and, in the process, extend the scope
and application of the laws. The common man may get lost in the maze of legislations coming
from all sides and contribute to its complexity by creating his own laws through contracts and
agreements with others he has to deal with. On the basis of the remedies sought and the
procedure followed, all laws can be grouped into two categories, namely, Civil laws and
Criminal laws. Broadly speaking criminal law is concerned with against the community as a
whole, while civil law is related to the rights, duties and obligations of individual members of the
community between themselves.

Civil laws includes a number of aspects which may be grouped under six or seven major
headings such as family law, the law of property, the law of tort, the law of contracts, the law
relating to commerce and business, labour law, law of taxation etc.

Criminal law is concerned with public wrongs or wrongs against the order and well being of the
society in general. The persons guilty of such wrongs are prosecuted and punished by the state.
These wrongs are specified and are defined in the Penal Code and few other special and local
laws. One important aspect is that criminal laws insist (apart from a few exceptional offences) on
a particular intent of state of mind as a necessary ingredient of a criminal offence. It also
recognizes degrees of criminality and gradations of crime. Ignorance of law is never taken as an
excuse.

 Certain situations where guilty intention could not have been entertained such as infancy,
insanity, mistake of fact etc., they are recognized as defenses to criminal responsibility. Offences
are classified on the basis of the objective or otherwise. Thus there are crimes against the human
body, property, and reputation of the individual, against the state or against public rights. On a
procedural basis they are classified as cognizable[25] and non-cognizable[26] (cognizable are
those in which the police can investigate or arrest persons without judicial warrant), bailable[27]
and non-bailable, compoundable or otherwise.

9. PROCEDURAL LAWS: CIVIL AND CRIMINAL.

Most proceedings in the Supreme Court and the High Courts are governed by Rules of Procedure
made by the Courts themselves under powers given by the statute. The Civil and Criminal
Procedure Codes and Evidence Act do apply to judicial proceedings in these courts as well. The
writ jurisdiction under Articles 32 and 226 can be invoked, whenever a person is deprived of
his/her fundamental rights. In such situations the citizens can approach these courts even through
a letter sent by ordinary post as the Supreme Court has declared that procedure should not be
allowed to come in the way of dispensation of justice.

For the enforcement of civil rights and obligations a suit before a civil court is usually instituted.
The procedures for trial and appeal including execution of decrees and orders as laid down in
the Code of Civil Procedure are followed. Valuation of suits for purposes of jurisdiction is made
according to the Suits Valuation Act. The amount of court fees to be paid on plaints and appeals
is determined by the Court Fees Act. The Limitation Act prescribes the periods of limitation
within which suits can be filed. The Evidence Act regulates the relevancy, admissibility and
probative value of evidence led in courts, civil and criminal.

The trial is in the nature of adversary proceedings where two parties oppose each other in a suit
or action between parties. The procedure commences with ‘pleadings’[28], which set out the
precise question in dispute or the cause of action. The opposite party (the defendant) may file a
written statement to admit or deny the allegations in the plaint. The parties may supplement the
pleadings by makings admissions of fact, answers and interrogatories, oral statements before the
court and by admissions and denials of documents filed by them. The ‘hearing’ of a suit
commences with the serving of a copy of the plaint to the defendant. The trial involves recording
of evidence of witnesses for deposing in the court. Because civil proceedings are private matters,
they can at any time be abandoned or compromised and, in fact, in a number of cases they are
settled before trial. Judgments are enforceable through the authority of the court. Refusal to obey
a judgment can lead to penal consequences. Many decrees are open to appeal in higher courts
within the specified period.

Criminal proceedings are governed by the provisions of the Code of Civil Procedure, the purpose
of which is to determine the accused is guilty of the offence charged and, if so, to decide the
punishment to be awarded.

It is designed to give every accused a ‘fair trial’ consistent with the constitutional commitment to
individual liberty and freedom. Criminal proceedings involve four major stages,
namely, investigations, prosecution, trial and disposition. Crimes being wrongs against society,
the state undertakes the prosecution on behalf of the victim. Whenever arrests are made they are
obliged to produce the arrested person before the nearest Magistrate within 24 hours. They are
not to use ‘third degree methods’, in interrogation and confession given to police are not
admissible as evidence in court. In all bailable cases they are bound to release the person on bail.
The arrest person has a right to seek the aid of a lawyer of his choice and he cannot be compelled
to give evidence against himself. Under our law every accused person is presumed innocent and
the prosecution (the State) has to prove the guilt beyond a reasonable doubt. If there is any doubt
in the evidence of the prosecution, the benefit of doubt is given to the accused and he is
acquitted.

 The defendant (or his lawyer) has the right to cross-examine every prosecution witness while he
cannot himself be questioned unless he consents to be sworn as a witness in his own defense. In
the case of indigent persons there is proviso for legal aid at State expense. If at the end of trial,
the Judge finds him guilty, he has a right to be heard on the determination of sentence. The
emphasis is modern criminal justice being reformation and rehabilitation there is enough scope
for a deserving convict to get correctional treatment as part of sentence. Apart from the civil and
criminal proceedings prescribed in the respective codes, there are a variety of adjudicative
procedures followed in tribunals, quasi-judicial administrative agencies, arbitration
councils, nyaya panchayats etc., where private disputes are processed and settled through
informal procedures. They are found be cheap, expeditious and less cumbersome in terms of
adjudication. Legal Aid has now assumed an important place in judicial procedure in our
country.

10. THE JUDICIAL SYSTEM TODAY

A very brief description of our judicial system today. Barring the Supreme Court, India has no
federal judiciary like the United States. Each State has its own judiciary, which administers both
Unionand State laws. As during the Maurya Empire, each district in the State has its hierarchy of
judicial officers- Munsif, Civil Judge, Civil and Sessions Judge- with the District Judge as its
head. I shall not givea detailed description of the organization of our state judiciary.

The Constitution of India created for the first time in Indian history a Supreme Court for the
whole of India. The establishment of this Court with an all-India jurisdiction is likely to
accelerate the development of a common law extending over every nook and corner of the
republic. Article 141 enjoins “that the law declared by the Supreme Court shall be binding on all
Courts in India.”[29] It gives the opinions of our Supreme Court a constitutional force. The
judicial process can be an effective weapon for forging national integration. In England the law
Courts were the most effect weapon for creating a common law for the English people. There
can be no doubt that the Supreme Court by its decisions and opinions, with the authority of
Article 141 behind them, shall accelerate the process of establishing a common law for the whole
of India.

11. COURTS OF LAW

Courts are institutions wherein disputes are adjudicated and justice administered. They are
created by Statutes and enjoy such powers and jurisdiction, which the Statutes confer. The
Constitution itself provides for the Supreme Court and the High Court in each State at the apex
of the judicial system and confers original and appellate jurisdiction on them primarily to resolve
disputes between union and the State, State and State, State and the citizen and in limited cases
appeals arising out of private disputes involving substantial questions of law. This higher
judiciary is named as the Union Judiciary and appointments to it are made by the President of the
Union on the advice of the Council of Ministers. Citizens can directly approach the High Courts
or the Supreme Court to seek redress for the violation of Fundamental Rights.
 These courts have a supervisory function over the subordinate courts (State Judiciary) which are
set up by each State according to its requirements under the Civil Procedure Code, Criminal
Procedure Code orother State laws, The High Courts and Supreme Court enjoy civil and criminal
jurisdiction apart from the writ jurisdiction.

The State judiciary under the High Court is organized in a hierarchy on the civil and criminal
sides based on their jurisdiction, territorial or monetary. On the criminal side, the Criminal
procedure Code provides for the magistrates; Courts (First or Second Class depending on the
extent of powers for punishment) and above them the Sessions Courts, usually one in each
District.

On the civil side, the civil Procedure Code provides for the Munsiffs’ Court (with limited
pecuniary jurisdiction). The Sub-Divisional Court and the district court each will vary pecuniary
and territorial jurisdiction. There can be Special Courts set up for specific purposes and also
Administrative and Revenue Tribunals to adjudicate upon specific categories of disputes. Thus
there are Motor Vehicles Compensation Tribunals, Sales Tax Tribunals, Election Commission,
[30]  land Tribunals etc., all of which are judicial bodies adjudicating disputes in the areas
assigned to them[31]. Appeals from these courts and tribunals usually lie to the high Courts and,
in exceptional cases, a second appeal to the Supreme Court. Administration of justice requires
the co-operation not only of the parties and the judges but also of offices of court that include the
Advocates, the court staff and the Para-legal personnel who assist the lawyers and judges.

12. JUDGES.

Judicial officer appointed or elected to hear and decide matters relating to law. Selected from
among the practicing lawyers, a judge, once appointed, may not be removed by the government
except by a resolution adopted by the both houses of parliament and assented-to by the head of
state.All judicial officers from the Supreme Court Judge to the Munsiff in a small taluka are
independent of both the legislature and the executive. They are free to administer law without
fear or favor and they cannot be interfered with by anyone including the top functionary of the
Government. They have the power to punish those who commit contempt of court or disobey
their legitimate orders. The President, acting on the advice of the Cabinet and the Chief Justice of
India, appoints the judges of the Supreme Court and the High Court. The Governor of the State
appoints the judicial Officers of the State similarly on the advice of the State High
Court/Government. Their salaries and service conditions from service requires a special
procedure and the control of their judicial functions vest on the higher judiciary.

13. LAWYERS AND THE BAR.

Lawyers are the key functionaries assisting the judges in the administration of justice. They are
officers of court and are constituted into an independent profession under an Act of
parliament. (The Advocates Act, 1961). No other person may practice before the courts. Without
the expert assistance of lawyers on either side of a dispute, judges will find it difficult to find the
truth on disputed fats in issue and interpret the law applicable to varied situations. That is why
the legal profession is often referred to as a noble and a learned profession.
To briefly put it, this is how our legal system functions. It is our responsibility to know the legal
system because society, individual and various laws are inter-related to each other. It is a vicious
circle. A common man should have an idea of what is the system in which we are functioning
(though malfunctioning) and on what lines does it functions? Though we might have different
opinions, i.e., whether our system is good or bad, is it functioning well or not, is it able to give
justice to the poor and the needy or not? Are some basic questions we might have? But the object
here is to create awareness among the masses who do not know our structure of Indian legal
system at all, so are not able to get any remedy also.

14. CONCLUSION.

‘Law ‘defines the political organization and structure of society,provides a scheme of individual
relationship within it and contributes to the stability of society by offering an objective
mechanism for the resolution of disputes and conflicts within the community. All extensive
human societies possess law in some form or other. ‘Legal System’ is the totality of laws of a
state or community.

The Legal System of a country is part of its social system and reflects the social, political,
economic, and cultural characteristics of that society. It is therefore difficult to understand that
legal system outside the socio-cultural milieu in which it operates. The legal system based on
British model (formal /inherited) is full of technicalities and procedures, and this makes the
system still foreign to the majority of Indians (whose legal culture is more indigenous) and limits
access to justice for poor and illiterate people. Nevertheless, the rights and benefits conferred by
the laws and the constitution offer the opportunity for those very people to enjoy the fruits of a
welfare democracy.  Thus, every Indian should be familiar with law and its procedures.