Table of Contents
INTRODUCTION
Indian Legal System is largely based on English Common Law system (where, the law is developed by judges through their decisions, orders, and judgments). It has created a federal system; with a Central government coupled with a State Government.
India’s legal framework reflects 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.
History of the Indian legal system
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.
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 (321-185 BCE) and the Mughals (16th – 19th centuries) with the latter giving way to the current common law system
Legal System in India during the British Period
During over 200 years of the British period in India, they applied English Law as extended to India but in personal matters, they applied customary law. Even different personal laws, govern family law especially Hindu & Muslim laws in the Modern Indian Legal System. Indian legal history can be traced back to when King George I issued a charter in 1726 to change Presidency Town’s i.e. Bombay, Calcutta and Madras judicial administration by introducing Privy Council in England.
Privy Council (1726-1949) exercised appellate jurisdiction and pronounced over 2,500 judgments & laid down fundamental principles of law for the guidance of Indian courts. British Government established three Supreme Courts of Judicature at Fort William at Calcutta; Madras; and Bombay which were abolished by The Indian High Court’s Act, 1861 to modernize the prevalent judicial system and also established Sadar Diwani Adalats (a Supreme Court of Revenue) in the Presidency Towns. British Authorities inaugurated the 1st constitutional court Federal Court of India in Delhi on October 1’ 1937 for all original, appellate, and advisory jurisdictions and was replaced by the Supreme Court of India on Jan. 26’1950.
Law and Judicial System of Modern India
The British Colonial period is the foundation of the modern Indian legal system where the Privy Council’s (1726-1949) contribution especially from 1833 onwards, in making Indian Law and Judicial System was remarkable. The law declared by the Privy Council in the pre-constitution period is still binding on High Courts except in those cases where the Supreme Court has declared law in its judgments. The modern judicial system of India is elaborated in the next section.
Constitution of India
The Constitution of India is the fountain source of law which was drafted by the “Constituent Assembly” in 2 years, 11 months & 18 days by referring to constitutional documents of Australia, Canada, Ireland & USA and enacted in 26th Nov. 1949. This is in 22 parts, 12 schedules, and 395 articles.
Types of laws in the Indian legal system
The source of law largely depends on the type of any country’s legal system. There are five types of legal systems i.e. civil law; common law; Criminal law;.Civil Law; Statutory law
Civil Law
Matters of disputes between individuals or organizations 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.
Common Law
Common law is also known as Case law or judge-made law or Judicial Precedent. Common law is an unwritten body of laws based on Judicial precedent. For uncommon cases where the result cannot be decided on the basis of Current Laws or Written Law Regulations, Common Law guides the Decision-Making Process. Judicial Decisions are made at the Highest Courts and they can be reversed only by the same Court or by Law.
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 Criminal Procedure Code, 1973.
The Indian Penal Code, 1860, defines the crime, its nature, and punishments whereas the Criminal Procedure Code, 1973, defines exhaustive procedure and punishments of the crimes. Murder, rape, theft, and assault are all examples of criminal offences under the law.
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 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 is that branch of the government that interprets the law, settles disputes, and administers justice to all citizens. The judiciary in India has a pyramidal structure with the Supreme Court (SC) at the top. High Courts are below the SC, and below them are the district and subordinate courts. The lower courts function under the direct superintendence of the higher courts.
Supreme Court (SC)
The Supreme Court is the apex body of the judiciary. It was established on 26th January 1950. 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.
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 each state must have a High Court. 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. There are twenty-five High Courts in India, 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.
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
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