Our Legal System

‘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 the 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. The Indian legal system based on British model 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 limit 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.

Components of a Legal System

A legal system consists 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 the laws, and, a cadre of legal personnel for administering the system.

(4) a cadre of legal personnel for administering the system.

(1) The Constitution

It is a written document, the fundamental law of the land, which declares India to be a socialist, secular democratic republic, having a quasi-federal structure. It is a political document which distributes State power amongst different organs (legislative, executive and judiciary) and regulates its exercise in its effect on the people.

To achieve the goal of dignity of the individual with justice, liberty, and equality (as set out in the Preamble), the Constitution guarantees certain fundamental rights (equality before law, protection of life and personal liberty, right to freedom of religion, etc.) and provides for its easy enforcement through the High Courts and the Supreme Court. Further, towards achieving these goals, the Constitution gives certain Directives to State to follow in its policies and programmes.

The Constitution envisages a unique place for the judiciary in the country. The judiciary keeps a check on the exercise of State power by executive and legislatures, and protects the citizens’ rights through writ jurisdiction.

The rule of law is supreme and the independence of judiciary is a living reality in our country. These form the bulwark of democracy and compels every one to abide by the law in his own interest.

(2) Laws: Civil and Criminal

On the basis of the remedies sought and the procedure followed, all laws can be grouped into two categories – civil laws and criminal laws. Broadly speaking, criminal law is concerned with wrongs against the community as a whole, while civil law is related to the rights, duties and obligations of individuals between themselves.

Civil law includes family law, law of property, law of torts, law of contracts, commercial law, labour law, etc. The persons guilty of criminal wrongs are prosecuted and punished by the State. These wrongs are specific and are defined in the Penal Code and a few other special and local laws. Offences are classified on the basis of the objective or otherwise. Thus, there are crimes against the human body, property, reputation, against the State or against public rights.

Procedural Laws

The procedural laws determine the procedure to be followed in the judicial proceedings. For the enforcement of civil rights and obligations a suit before a civil court is usually instituted. The procedures for trial and appeals including execution of orders and decrees are laid down in the

Code of Civil Procedure. The Evidence Act regulates the relevancy, admissibility and probative value of evidence led in courts. The Limitation Act prescribes the periods of limitation with in which suits can be filed. The amount of court fees to be paid on plaints and appeals is determined by the Court Fees Act.

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 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 hearing of a suit commences with the serving of a copy of the plaint to the defendant. A party can appear himself in court for the hearing or make appearance through an agent or pleader. In the proceedings, parties have to summon their witnesses for deposing in court. The trial involves recording of evidence of witnesses on a day to day basis at the conclusion of which judgment is to be pronounced in open 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 settled before trial.

Criminal proceedings are governed by the provisions of the Code of Criminal Procedure, the purpose of which is to determine whether the accused is guilty of the offence charged and, if so, to decide the punishment to be awarded therefor. 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, investigation, prosecution, trial and disposition. The police during investigation is authorised to interrogate people, arrest the suspects, search places, etc. Under our law every accused is presumed innocent and the prosecution (the State) has to prove the guilt beyond a reasonable doubt. The benefit of doubt is given to the accused and he is acquitted thereby. The defendant 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 defence. If at the end of trial, the judge finds him guilty, he has a right to be heard on the determination of sentence. The modern criminal justice system emphasises reformation of the offender, rather then the punishment.

Apart from the civil and criminal proceedings, there are a variety of adjudicative procedures followed in tribunals, quasi-judicial administrative agencies, arbitration councils, lok adalats, nyaya panchayts, etc., where private disputes are settled through informal procedures. They provide speedy, cheap and simple justice. In the case of poor persons, there is provision for legal aid at the State expense. Right to counsel by a lawyer of one’s choice is a constitutional right of every citizen.

(3) Institutional Structures: 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, which 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. Citizens can directly approach these higher courts to seek redress for the violation of Fundamental Rights. The High Courts and Supreme Court enjoy civil and criminal jurisdiction apart from the writ jurisdiction. The Supreme Court is the highest court of appeal, i.e., could heard appeal from any court on any matter.

The subordinate courts comprises the State Judiciary. On the criminal  side, the Cr. P.C. provides for the Magistrates Courts, and above them the Sessions Court, usually one in each district. On the civil side, the C.P.C. provides for the Munsiffs Court, the Sub-Divisional Court and the District Court each with varying 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 e.g. Claims Tribunals for Motor Vehicles Compensation, Income- tax Tribunals, etc.

(4) Legal Personnel : Judges, Lawyers and the Bar

Administration of justice requires the cooperation not only of the parties and judges but also of the officers of the court i.e. the Advocates, the court staff, etc. An estimated 2,30,000 advocates and thousands of judges constitute the cadre of legal personnel.

All judges, whether of lower or higher courts, are independent both the legislature and the executive and are free to administer law without fear or favour. 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. The lower judges are selected through States judicial services.

Lawyers are the key functionaries assisting the judges in the administration of justice. The Advocates Act, 1961, provides that only lawyers may practice before the courts. Without the expert assistance of lawyers, judges will find it difficult to find the truth on disputed facts in issue and interpret the law applicable to different situations. That is why the legal profession is often referred to as a noble and a learned profession. For organisational purposes, the lawyers have formed themselves into bar associations.


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