INDIAN LEGAL SYSTEM YMSAJAD

1. INTRODUCTION
India has one of the oldest legal systems in the world. The history of the present judicial system may be
traced back to the year 1726, when a Charter was issued by King George I for bringing about important
changes in the judicial administration of the Presidency Towns of Bombay, Calcutta and Madras. The Indian
legal system is a unique feature of the Indian Constitution. It is connected with system of courts that
administer both state and union laws.
1.1 ANCIENT PERIOD
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, tehsils and
Parganas). Sthaniya was a fortress established in the center 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 center 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 Vachaspati Misra and others, described in detail the judicial system and legal
procedure which prevailed in India from ancient times till the close of the Middle Ages.
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 was the 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.
According to Vachaspati Misra, "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".
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. We are following an ancient tradition without being
conscious of it.
The King’s Judges
The judges and counsellors guiding the king during the trial of a case were required to be independent and
fearless and prevent him from committing any error or injustice. Says Katyayana: "If the king wants to inflict
upon the litigants (vivadinam) an illegal or unrighteous decision, it is the duty of the judge (samya) to warn
the king and prevent him.”
"The judge guiding the king must give his opinion which he considers to be according to law, if the king does
not listen, the judge at least has done his duty. When the judge realizes that the king has deviated from
equity and justice, his duty is not to please the king for this is no occasion for soft speech (vaktavyam tat
priyam natra); if the judge fails in his duty, he is guilty."
Delegation of Judicial power by the King
As civilization advanced, the king’s functions became more numerous and he had less and less time to hear
suits in person, and was compelled to delegate more and more of his judicial function to professional judges.
Katyayana says: "If due to pressure of work, the king cannot hear suits in person he should appoint as a judge
a Brahmin learned in the Vedas."
The qualifications prescribed for a judge were very high. According to Katyayana; "A judge should be austere
and restrained, impartial in temperament, steadfast, God-fearing, assiduous in his duties, free from anger,
leading a righteous life, and of good family.
In course of time, a judicial hierarchy was created which relieved the king of much of the judicial work, but
leaving untouched his powers as the highest court of appeal. Under the Maurya Empire a regular judicial
service existed as described above.
1.2 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 and procedure were applied
throughout the country. This is indicated by the fact that the great commentaries on law like Mitakshara and
Shukarneeti Sar 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. The Prophet himself set the
standards. He said in the Quran, "Justice is the balance of God upon earth in which things when weighed are
not by a particle less or more. And 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 60 years. Thus, the administration of justice was regarded by
the Muslim kings as a religious duty.
This high tradition reached its zenith under the first four Caliphs. The first Qadi was appointed by the Caliph
Umar who enunciated the principle that the law was supreme and that the judge must never be subservient
to the ruler. It is reported of him that he had once a personal law suit against a Jewish subject, and both of
them appeared before the Qadi who, on seeing the Caliph, rose in his seat out of deference. Umar considered
this to be such an unpardonable weakness on his part that he dismissed him from office. The Muslim kings
in India bought with them these high ideals. It is reported by Badoni that during the reign of Sultan
Muhammad Tughlaq the Qadi dismissed a libel suit filed by the Kind himself against Shaikh Zada Jami, but
no harm was done to him. (This however did not prevent the Sultan from executing the defendant without
a trial). Individual Sultans had very high ideals of justice. According to Barani, Balban regarded justice as the
keystone of sovereignty "wherein lay the strength of the sovereign to wipe out the oppression". But
unfortunately, the administration of justice under the Sultans worked fitfully. The reason was that the
outstanding feature of the entire Sultanate period was confusion and chaos. No Sultan felt secure for a long
time. One dynasty was replaced by another within a comparatively short period, and the manner of
replacement was violent. Consequently, the quality of justice depended very much on the personality of the
sovereign. As a modern writer says, "The medieval State in India as elsewhere 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 India never felt secure.
Consequently, the democratic ideal of government preached by Islam was obscure in India. 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. 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 Qazi’s or Sadars."
This view is not accepted by other writers. On the appointment of a Qazi, he was charged by the Imperial
Diwan in the following words:
"Be Just, be honest, be impartial. Hold trials in the presence of the parties and at the court-house and the
seat of Government (Mahakam). Do not accept presents from the people of the place where you serve, nor
attend entertainments given by anybody and everybody. Write your decrees, sale-deeds, mortgage bonds
and other legal documents very carefully, so that learned men may not pick holes in them and bring you to
shame. Know poverty (fakhr) to be your glory (fakhr). But due to lack of supervision and absence of good
tradition, these noble ideals were not observed. 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 cases 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.
"No Indian Emperor’s or Qazi’s decisions was ever considered authoritative enough to lay down a legal
principle to elucidate any obscurity in the Quran, or supplement the Quranic law by following the line of its
obvious intention in respect of cases not explicitly provided for by it. Muslim law in India was, therefore,
incapable of growth and change, except so far as it reflected changes of juristic thought in Arabia or Egypt.
“After the death of Aurangzeb, the Mughal Empire collapsed within two generations. The provincial
Governors and Faujdars arrogated to themselves the status of sovereigns and awarded punishment for
criminal offences in their own names. A relic of this usurpation of the Emperors’ power is the name Faujdar
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 Sadri 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.
1.3 LEGAL SYSTEM IN MODERN INDIA
The independence of India resulted in certain inevitable changes in the structure of the judiciary, the
most significant of which was the substitution of the Supreme Court in the place of Privy Council as an
ultimate court of appeal. The present Judicial system in India consists of a hierarchical network of courts.
Liberal provisions exist for taking appeals from the lower to the higher courts. The Supreme Court, the
highest court of the land, enforces a high standard of justice and promotes a common approach to the law
throughout the country.
Growth of Legal Profession in India
The legal profession constitutes an important part of the society for administration of justice. To quote the
Law Commission Report (1958) "A well-organized system of judicial administration postulates a properly
equipped and efficient Bar". Therefore, without a well-organized profession of law, the courts would not be
in a position to administer justice effectively. The advocates of the Mayors courts in 1726 in the Presidency
towns are not regulated by any authorized frame of rules and no specific provision existed for laying down
qualifications for them. Therefore, those who practiced law at that time arc devoid of any legal training or
the knowledge of law. The first step in the organization of legal profession in India laid the establishment of
the Supreme Court at Calcutta in 1774. The Supreme Court is empowered to admit and enrol the advocates
and attorneys-at law. The term advocate at that time referred to the English and Irish Barristers and
advocates in Scotland. The expression 'Attorney' then meant only the British attorneys or Solicitors. The
Supreme Court, thus, was exclusively meant for the British legal system and the indigenous Indian legal
practitioner had no entry into this court. Similar situation persisted in the Supreme Courts of Bombay and
Madras. In 1861, legislation is passed to establish High Courts at Calcutta, Bombay and Madras. The High
courts were empowered to admit and enrol advocates, Vakils and attorneys to appear for the suits in High
Court. In 1879, the Legal Practitioners Act was enacted to consolidate and amend the law relating to legal
practitioners.
This Act empowered the High Court to make rules, regarding the qualifications and admission of proper
persons to be pleaders and mukhtars of the High Court. According to the rules framed by the Chartered High
courts, there are basically three classes of lawyers namely attorneys, advocates and Vakils. Vakils are the
persons who had taken their LLB degree from an Indian University and had the same standing as those of
attorneys. In the non-chartered High courts, there used to be advocates, pleaders and mukhtars. Pleaders
were enrolled to practise before the subordinate courts after passing the leadership examination conducted
by the High courts. After certain years of practise, they enrolled themselves as High Court Vakils. Besides the
pleaders, there are mukhtars, who after completion of Matriculation passed the mukhtarship examination
held by the High courts and mainly pleaded before the criminal courts. Thus, the legal profession in India
had a chaotic scene of several categories of legal professionals. The Government of India appointed the
Indian Bar Committee popularly known as Chamier Committee in 1923 to report on the proposal of the legal
professionals to constitute an Indian Bar. The committee recommended for the unification of different
categories of legal practitioners and for the establishment of a Bar Council for each High court. In tune with
the recommendations to the Charniers committee to establish Bar councils, the Central legislature enacted
the Indian Bar Councils Act in 1926. This Act had left out the pleaders and the mukhtars practising in the
mofussil courts entirely of its scope and did not bring about a unified Indian Bar. The Indian Legal profession,
not satisfied with the provisions under the 1926 Act, continued their effort to establish a unified all-India
Bar. The establishment of the Supreme Court of India in 1950 gave a new stimulus to the demands of the
Indian legal profession. As a result, the All India Bar Committee is constituted in 1951 which submitted its
report in 1953 with We recommendations to create a unified national Bar. The Committee also
recommended for the creation of all India Bar Council and State Bar councils. It also emphasized the principle
of autonomy of the Bar consisting wholly of the members of the profession. In 1961, the Parliament enacted
the Advocates Act to amend and consolidate the law relating to legal practitioners and to provide Tor the
constitution of the Bar Councils and an All India Bar. The Act establishes an All- India Bar Council and a
common roll of advocates, advocate on the common rolls has a right to practise in any part of India and in
any court, including the Supreme Court.
The Bar has been integrated into a single class of legal practitioners known as advocates. The Act creates a
State Bar Council in each State and a Bar Council of India at the Centre. The State Bar Council is empowered:
• to admit persons as advocates on its rolls,
• to entertain and determine cases of misconduct against advocates on its rolls; and
• to safeguard the rights, privileges and interests of advocates on its rolls.
The Bar Council of India prepares and maintains a common roll of advocates, lays down standards of
Professional conduct and legal education.
2. BASIS OF INDIAN LEGAL SYSTEM
The Chief Justice and the other judges of the Supreme Court are appointed by the president. The Supreme
Court has its own advisory and jurisdiction which has the power to enforce the primary rights mentioned in
the Indian constitution. And it solves any argument in between the government of India and all states of
India. While according to ratings the Indian legal system is measured fair, even though there is a large backlog
of different types of cases.
Legal system in Indian villages:
In rural areas of India, people are encouraged to resolve their problems with help of one main legal system
which is “PANCHAYATS” It is mainly a group of five respected people of a village and they are appointed by
the local people to solve their problems.
3. SOURCES OF INDIAN LEGAL SYSTEM
3.1 PRIMARY SOURCES
Customary Law:
Customs have played an important role in making the law and therefore are also known as customary law.
‘Customary Law’, in the words of Keeton, may be defined as “those rules of human action, established by
usage and regarded as legally binding by those to whom the rules are applicable, which are adopted by the
courts and applied as sources of law because they are generally followed by the political society as a whole
or by some part of it”.
In simple words, “it is the uniformity of conduct of all persons under like circumstances”. It is a generally
observed course of conduct by people on a particular matter. When a particular course of conduct is followed
again and again, it becomes a custom. Every custom does not become law. A custom, to be valid, must be
observed continuously for a very long time without any interruption. Further, a practice must be supported
not only for very long time, but also it must be supported by the general public opinion. Also, a custom must
not conflict with any statute law and must not be opposed to public policy and morality. Another requisite
of a valid custom is that it must be certain and definite and not vague and ambiguous. Last, but not the least,
a custom must be reasonable and not opposed to the principles of justice, equity and good conscience. A
valid custom is law unless it has been overridden by legislation. For example, the Hindu Marriage Act
prohibits marriage of persons who are within the “prohibited degree of relationship”, still the Act permits
marriage of persons within prohibited degree of relationship, if there is a proven custom in a certain
community. With the progress of civilization, custom as a source of law is being replaced by statutes and
judicial precedents. As customary law is unwritten, therefore, it is sometimes called jus non-scriptum as
contrasted with the legislation which is called jus scriptum.
Judicial Precedents
Judicial precedents are another important source of law. It is based on the principle that a rule of law which
has been settled by a series of decisions generally should be binding on the court and should be followed in
similar cases. These rules of law are known as judicial precedents. However, only such decisions which lay
down some new rules or principles are treated as judges to follow the same; they cannot substitute their
opinions for the established rule of law. This is known as the doctrine of ‘stare decisis’. The literal meaning
of this phrase is “stand by the decision”.
The common law of England owes much of its development to the system of judicial precedents. In India
also, the practice of following precedents is as much prevalent as in England. For example, each court is
absolutely bound by the decisions of the courts superior to it.
Thus, the decision of a single judge of a High court is absolutely binding on the courts subordinate to it.
However, a Division Bench of the same High Court can overrule the same. A full Bench which must consist
of three or more judges can overrule a Division Bench. All courts in India are absolutely bound by the
decisions of the Supreme Court; Article 141 of the Constitution of India provides that the law declared by
the Supreme Court shall be binding on all courts within the territory of India. ‘All Courts’ means courts other
than the Supreme Court. The Supreme Court is not bound by its earlier decisions and may reverse the same
on a subsequent occasion if it is convinced that the same is clearly erroneous or it would be detrimental to
public welfare if the previous decision is allowed to continue.
Statute– An Important Source of Law:
The statutes or the statutory law or the legislation is the main source of law. This law is created by legislation
such as Parliament. In India, the Constitution empowers the Parliament and state legislatures to promulgate
law for the guidance or conduct of persons to whom the statute is, expressly or by implication, made
applicable. It is sometimes called ‘enacted law’ as it is brought into existence by getting Acts passed by the
legislative body. It is called Statute Law because it is the writ of the state and is in written form (jus scriptum).
The superiority of legislation over all other sources of law is now well established. It is not merely a source
of new law, but is equally effective in abolishing that which already exists. Thus, it has what is known as
abrogative power. Another advantage of legislation is that it makes possible to distinguish between two
important organs of state, i.e., Legislature and Judiciary.
The duty of the legislature is to make law and that of judicature to interpret and apply the same. Another
virtue of legislation lies in the fact that it satisfies the requirement of natural justice that laws shall be known
before they are enforced. Further, legislature can, by way of anticipation, make rules for cases that have not
yet arisen. Furthermore, the product of legislation assumes the form of abstract propositions.
The statutory law as compared to customary law or judicial precedents is more compact, easily identifiable
and definite. It is brought into existence after discussions and debates, both within and outside the
legislature. Also, the statutory law is different from judicial precedents. The latter do not create any new
law; they apply an existing law to a particular set of circumstances.
And while doing so reasons are also given and they are, thus, argumentative. On the other hand, the
statutory law creates new law and is imperative. In other words, legislation is imposed on courts by the
legislature but precedents are created by the courts themselves.
Legislation
Legislation is the prime source of law. and consists in the declaration of legal rules by a competent authority.
Legislation can have many purposes: to regulate, to authorize, to enable, to proscribe, to provide funds, to
sanction, to grant, to declare or to restrict. A parliamentary legislature frames new laws, such as Acts of
Parliament, and amends or repeals old laws. The legislature may delegate law-making powers to lower
bodies. In the UK, such delegated legislation includes Statutory Instruments, Orders in Council, & Bye-laws.
Delegated legislation may be open to challenge for irregularity of process; and the legislature usually has the
right to withdraw delegated powers if it sees fit. Most legislatures have their powers restricted by the
nation's Constitution, and Montesquieu's theory of the separation of powers typically restricts a legislature's
powers to legislation. Although the legislature has the power to legislate, it is the courts who have the power
to interpret statutes, treaties and regulations. Similarly, although parliaments have the power to legislate, it
is usually the executive who decides on the legislative programme. The procedure is usually that a bill is
introduced to Parliament, and after the required number of readings, committee stages and amendments,
the bill gains approval and becomes an Act.
3.2 SECONDARY SOURCES
The secondary sources of Indian Law are English Law and justice, Equity and Good Conscience.
English Law
The chief sources of English Law are the Common Law, Equity, The law Merchant and The statute Law.
Nowadays, English law is not very important source of Indian law. The English law, in its application to India,
has to conform to the peculiar circumstances and conditions prevailing in this country. Even though the bulk
of our law is based on and follows the English law, yet in its application our courts have to be selective. It is
only when the courts do not find a provision on a particular problem in the primary sources of Indian Law
that it may look to subsidiary sources such as the English Law. For example, the greater part of the Law
Merchant has been codified in India.
The India Contract Act 1872, the Indian Partnership Act, 1932, the Scale of Goods Act 1930 and the
Negotiable Instruments Act, 1872, are some of the very important Acts relating to business transactions.
Where, however, there is some doubt as to the interpretation of any provisions of these Acts or where
certain branches of the Law merchant have not been codified, the courts in India look to English decisions
on the point, for guidance.
Justice, Equity and Good Conscience
In India we do not have, no did we ever had separate courts (as in England) administering ‘equity’. But the
equitable principles of law, I.e., justice, equity and good conscience, are the guiding force behind most of
the statutes in our country and the decisions of the courts.
Especially, where law is silent on any point or there is some lacuna in a statute, the principles of equity come
handy to the judges who exercise their discretion often on equitable considerations. The frequent use of
terms such as ‘good faith’, ‘public policy’, in statutes and by the judges in their judgments is based on
principles of equity.
Now we shall briefly describe the main sources of English law:
Common Law
This source consists of all those unwritten legal doctrines embodying customs and traditions developed over
centuries by the English courts. Thus, the common law is found in the collected cases of the various courts
of law and is sometimes known as ‘case law’. The Common Law emphasizes precedents.
Equity
The literal meaning of the term ‘equity’ is ‘natural justice’. The development of equity as a source of law
occurred due to rigours and hardships of the Common Law.
Therefore, in its technical and narrower sense, ‘equity’ means a body of legal doctrines and rules emanating
from the administrations of justice, developed to enlarge, supplement or override a narrow rigid system of
existing law of the land. However, like the common law, the ‘equity’ is unwritten and is a supplement to
common law as a source of law.
Statute Law
The Statue law consists of the law passed by the Parliament and therefore, is ‘written’ law. The authority of
parliament is supreme but is subject to natural limitations and those laid down by the Constitution. It can
pass any law it pleases and can override its own previous Acts and decisions of the courts. Statute law,
therefore, is superior to and can override any rule of Common Law or equity.
The Law Merchant or Lex Mercatoria:
It is another important source of law and is based to a great extent on customs and usages prevalent among
merchants and traders of the middle ages. Its evolution like that of equity can be traced to unsuitability of
Common Law so far as the commercial transactions were concerned.
The Common Law was found to be unsatisfactory in dealing with disputes between merchants. The
merchants, therefore, developed certain rules based upon customs and usages to govern their mercantile
transactions. These rules were known as Lex Mercatoria or the Law Merchant. For many years the Common
Law courts refused to recognise these customs and usages even though they were regarded as binding
between the merchants themselves.
However, Lex Mercatoria is now regarded as part of the Common Law. It is worth noting that the Lex
Mercatorian is the origin of much of the present law relating to negotiable instruments, trademarks,
partnership, contract of affreightment and insurance. Parts of the Law Merchant have been codified in
England, for example, the Sale of Goods Act, 1893 and the bills of Exchange act, 1882.
4. CONSTITUTION OF INDIA
The Indian Constitution was framed by the Constituent Assembly and came into effect from 26th November
1949 (Preamble and Article 394). The Indian Constitution was in part modelled on the Government of India
Act 1935 (an Act passed by the British Parliament) and the Constitutions of other nations such as the Irish
Constitution. The Indian Constitution in turn served as a model for many nations, which became independent
subsequently.
The Constitution is divided into Parts and further into Chapters and Articles. The Constitution provides for a
quasi-federal nation consisting of a Union of States (Article 1). It provides for separate executives and
legislatives for the Union and for each of the States and demarcates the powers of each. However, the
residual power is with the Union. Under certain circumstances, the Union can (and has) dissolved the
executive and legislatives of the States. The judiciary is however unitary in structure although administered
separately by the Union and the States. There are no separate Federal and State Courts.
The Constitution itself can be amended by a special majority of the union legislature. Amendments to the
provisions of the Constitution dealing with the States require the consent of the legislatures of at least half
of the States (Article 368). The Constitution can be amended fairly extensively but the amendments cannot
violate the basic features of the Constitution such as the independence of the judiciary, the sovereign
democratic and republican structure of the nation, the rule of law and free and fair elections.
4.1 PRESIDENT OF INDIA AND HIS POWERS
The President of India is the ceremonial head of state of India and the commander-in-chief of the Indian
Armed Forces.
The president is indirectly elected by an electoral college comprising the Parliament of India (both houses)
and the legislative assemblies of each of India's states and territories, who themselves are all directly elected.
Although the Article 53 of the Constitution of India states that the president can exercise his powers directly
or by subordinate authority, with few exceptions, all of the executive powers vested in the president are, in
practice, exercised by the prime minister (a subordinate authority) with the help of the Council of Ministers.
The president is bound by the constitution to act on the advice of the prime minister and cabinet as long as
the advice is not violating the constitution.
Powers
Legislative powers
Legislative power is constitutionally vested by the Parliament of India of which the president is the head, to
facilitate the law-making process per the constitution (Article 78, Article 86, etc.). The president summons
both the houses (The House of the People and 'The Council of States') of the parliament and prorogues them.
He can dissolve the Lok Sabha.
The president inaugurates parliament by addressing it after the general elections and also at the beginning
of the first session every year per Article 87(1). The Presidential address on these occasions is generally
meant to outline the new policies of the government. All bills passed by the parliament can become laws
only after receiving the assent of the president per Article 111. After a bill is presented to him, the president
shall declare either that he assents to the Bill, or that he withholds his assent from it. As a third option, he
can return a bill to parliament, if it is not a money bill, for reconsideration. President may be of the view that
a particular bill passed under the legislative powers of parliament is violating the constitution, he can send
back the bill with his recommendation to pass the bill under the constituent powers of parliament following
the Article 368 procedure. When, after reconsideration, the bill is passed accordingly and presented to the
president, with or without amendments, the president cannot withhold his assent from it. The president can
also withhold his assent to a bill when it is initially presented to him (rather than return it to parliament)
thereby exercising a pocket veto on the advice of prime minister or council of ministers per Article 74 if it is
inconsistent to the constitution. Article 143 gave power to the president to consult the supreme court about
the constitutional validity of an issue. The president shall assent to constitutional amendment bills without
power to withhold the bills per Article 368 (2).
When either of the two Houses of the Parliament of India is not in session, and if the government feels the
need for an immediate procedure, the president can promulgate ordinances which have the same force and
effect as an act passed by parliament under its legislative powers. These are in the nature of interim or
temporary legislation and their continuance is subject to parliamentary approval. Ordinances remain valid
for no more than six weeks from the date the parliament is convened unless approved by it earlier. Under
Article 123, the president as the upholder of the constitution shall be satisfied that immediate action is
mandatory as advised by the union cabinet and he is confident that the government commands majority
support in the parliament needed for the passing of the ordinance into an act and parliament can be
summoned to deliberate on the passing of the ordinance as soon as possible. The promulgated ordinance is
treated as an act of parliament when in force and it is the responsibility of the president to withdraw the
ordinance as soon as the reasons for promulgation of the ordinance are no longer applicable. Bringing laws
in the form of ordinances has become a routine matter by the government and President, but the provisions
made in Article 123 are meant for mitigating unusual circumstances where immediate action is inevitable
when the extant provisions of the law are inadequate. Re-promulgation of an ordinance after failing to get
approval within the stipulated time of both houses of parliament is an unconstitutional act by the president.
The President should not incorporate any matter in an ordinance which violates the constitution or requires
an amendment to the constitution. The president should take moral responsibility when an ordinance
elapses automatically or is not approved by the parliament or violates the constitution.
Executive Powers
The executive power of the country is vested in the president and is exercised by President either directly or
through officers subordinate to him in accordance with the constitution. When parliament thinks fit it may
accord additional executive powers to the president per Article 70 which may be further delegated by the
president to the governors of states per Article 160. Union cabinet with prime minister as its head, should
aid and advice the president in performing his functions. Per Article 74 (2), the council of ministers or prime
minister are not accountable legally to the advice tendered to the president but it is the sole responsibility
of the president to ensure compliance with the constitution in performing his duties. President or his
subordinate officers is bound by the provisions of the constitution notwithstanding any advice by union
cabinet. As per Article 142, it is the duty of President to enforce the decrees of the supreme court.
Judicial powers
The primary duty of the president is to preserve, protect and defend the constitution and the law of India
per Article 60. The president appoints the Chief Justice of India and other judges on the advice of the chief
justice. He dismisses the judges if and only if the two Houses of the parliament pass resolutions to that effect
by a two-thirds majority of the members present.
The Indian government's chief legal adviser, Attorney General of India ,is appointed by the President of India
under Article 76(1) and holds office during the pleasure of the president.
If the president considers a question of law or a matter of public importance has arisen, he can also ask for
the advisory opinion of the supreme court per Article 143. As Per Article 88, President can ask the Attorney
General to attend the parliamentary proceedings and report to him any unlawful functioning if any.
Appointment powers
The president appoints as prime minister, the person most likely to command the support of the majority in
the Lok Sabha (usually the leader of the majority party or coalition). the president then appoints the other
members of the Council of Ministers, distributing portfolios to them on the advice of the prime minister. The
Council of Ministers remains in power at the 'pleasure' of the president. The president appoints 12 members
of the Rajya Sabha from amongst persons who have special knowledge or practical experience in respect of
such matters as literature, science, art and social service. President may nominate not more than two
members of Anglo Indian community as Lok Sabha members per Article 331.
Governors of states are also appointed by the president who shall work at the pleasure of the president.
As Per Article 156, President is empowered to dismiss a governor who has violated the constitution in his
acts. The president is responsible for making a wide variety of appointments. These include:
• The chief justice and other judges of the Supreme Court of India and state/union territory high courts.
• The Chief Minister of the National Capital Territory of Delhi (Article 239 AA 5 of the constitution).
• The Comptroller and Auditor General.
• The Chief Election Commissioner and other Election Commissioners.
• The Chairman and other Members of the Union Public Service Commission.
• The Attorney General.
• Ambassadors and High Commissioners to other countries (only through the list of names given by the
prime minister).
• Officers of the All India Services (IAS, IPS and IFoS), and other Central Civil Services in Group 'A'.
Financial powers
A money bill can be introduced in the parliament only with the President’s recommendation.
The president lays the Annual Financial Statement, i.e. the Union budget, before the parliament.
The president can take advances out of the Contingency Fund of India to meet unforeseen expenses.
The president constitutes a Finance commission after every five years to recommend the distribution of the
taxes between the centre and the States.
Diplomatic powers
All international treaties and agreements are negotiated and concluded on behalf of the president. However,
in practice, such negotiations are usually carried out by the prime minister along with his Cabinet (especially
the Foreign Minister). Also, such treaties are subject to the approval of the parliament. The president
represents India in international forums and affairs where such a function is chiefly ceremonial. The
president may also send and receive diplomats, i.e. the officers from the Indian Foreign Service. The
president is the first citizen of the country.
Military powers
The president is the Supreme Commander of the Indian Armed Forces. The president can declare war or
conclude peace, on the advice of the Union Council of Ministers headed by the prime minister. All-important
treaties and contracts are made in the President's name.
Pardoning powers
As mentioned in Article 72 of the Indian constitution, the president is empowered with the powers to grant
pardons in the following situations:
• Punishment is for an offence against Union law.
• Punishment is by a military court.
• A sentence that is of death.
The decisions involving pardoning and other rights by the president are independent of the opinion of the
prime minister or the Lok Sabha majority. In most cases, however, the president exercises his executive
powers on the advice of the prime minister and the cabinet.
Emergency powers
The president can declare three types of emergencies: national, state and financial, under articles 352, 356
& 360 in addition to promulgating ordinances under article 123.
5. PARLIAMENT OF INDIA
Article 79 of the Constitution of India provides that there shall be Parliament for the Union which shall consist
of the President and two Houses to be respectively known as the Council of States and the House of the
People. Thus, the Constitution has stipulated a bicameral system of legislature in which Indian Parliament
consists of two Houses. Whereas the Rajya Sabha is Upper House, the Lok Sabha is Lower House of
Parliament. The former is a permanent House in the sense that it cannot be dissolved, unlike latter i.e., the
Lok Sabha, which has a fixed term of five years unless dissolved earlier.
The Lok Sabha consists of representatives directly elected by the people on the basis of universal adult
franchise, except of course in the case of Anglo-Indian community, whose two representatives can be
nominated in that House, when the President is satisfied that that community has not been properly
represented. This nomination has so far been made in the case of all the ten Lok Sabhas.
5.1 RAJYA SABHA
The Rajya Sabha, as already mentioned, is Upper House of Indian Parliament. Article SO of the constitution
provides that the Council of States shall consist of 12 members to be nominated by the President in
accordance with the provisions of clause (3) and not more than two hundred and thirty-eight representatives
of the states and of the Union Territories.
It is also provided that allocation of seats in the Council of States to be filled in by the representatives of
states and Union Territories shall be as contained in the Fourth Schedule to the constitution. Clause (3) of
the constitution also, provides that the members to be nominated by the President shall be those who have
special know ledge or practical experience in respect of such matters as literature, science, art and social
services. The constitution also provides that the representatives of each state in the Council of States shall
be elected by the elected members of the Legislative Assembly of the state in accordance with the system
of proportional representation by means of single transferable vote.
The composition of the Rajya Sabha, in term of number of seats to each state has been changing, because
from time to time the states have been reorganised. Members from the Union Territories are chosen in such
a manner as the Parliament may decide by law. The basis of the composition, i.e., number of representatives
to be elected from each State has been fixed keeping in view the population of each State. Thus, each State
has not been given equal representation, as is the case with the Senate of the USA where each state, big or
small, is represented by two representatives or Swiss Upper House in which two representatives each come
from full Canton and one member each from half Canton.
By and large, a state is given representation on the basis of one member for each million of the first five
million of its population and thereafter only one seat after every additional two million. Of course, the
Constitution provides that twelve members to be nominated by the President shall be those who have
earned a name and lame in the field of science, art, literature and social services, yet sometimes nomination
to the Rajya Sabha are made of the persons who are likely to politically support the Prime Minister and of
those who have already been inducted in the cabinet but are not being asked by the party bosses to contest
the Lok Sabha seat within a stipulated period of 6 months, due to one reason or the other.
The Rajya Sabha is a continuing body and 1/3 of its member retire after even 2 years. Thus, each member is
elected for a term of 6 years. Though it is expected that the members should be elected on the basis of
interests of the state, yet in actual practice all elections are held on party lines.
5.2 LOK SABHA
The Lok Sabha is Lower House of Indian Parliament. Article 81 of the constitution deals with the composition
of this House. It had originally been provided that the Lok Sabha shall consist of not more than 500 members
to be directly elected by the electorates from territorial constituencies of the states and not more than 25
members to be elected from the Union Territories. It had also then been provided that each representative
shall not represent less than 5 lakh or more than 7.5 lakh of population. But subsequently as the population
increased, there were two alternatives open, namely, either to increase the size of the Lok Sabha or to end
the restriction that each representative shall not represent more than 7.5 lakh of population. In 1953, Second
Constitution Amendment Act was passed by which population restriction was done away with.
Now according to Art. 81 of the constitution the House of the People shall consist of not more than 530
members chosen by direct election from territorial constituencies in the states and not more than
20 members to represent the Union Territories chosen in such manner as the Parliament may by law provide.
At present membership of the Lok Sabha is 542. It is also provided in the constitution in Article 81(2) that
each state shall be allotted a number of seats in the Lok Sabha in such manner that the ratio between that
number and the population of the state, in so far as possible shall be uniform for all the states. In other
words, for allocating number of seats the basis shall be uniform. Obviously in this arrangement the states
which have more population shall have more seats, as compared with the states, which have less population.
In order to return the representatives each state shall be divided into territorial constituencies in such a
manner that the ratio between the population of each constituency and the number of seats allotted to it,
shall as far as possible, be the same throughout the state. Since the whole arrangement is based on
population it was provided that population meant the population as ascertained at the last preceding census
of which the relevant figures had been published.
This provision was, however, amended by Forty-Second Constitution Amendment Act by which it was
provided that the reference to this clause to the “last preceding census of which relevant figures have been
published shall until the relevant figures for the first census taken after the year 2000 have been published”,
be construed as reference to 1971 census.
The Lok Sabha consists of representatives directly elected by the people, but Article 331 of the constitution
provides that in case the President is of the opinion that Anglo-Indian community has not been adequately
represented in the Lok Sabha he may nominate not more than two members of that community in the
House. There is no specific nomination of the members of scheduled castes and scheduled tribes, by the
President in the Lok Sabha, but from certain constituencies, which are notified in advance by the Election
Commission, the members belonging to the scheduled castes and schedule tribes can only be returned. Thus,
these castes and tribes get adequate and proper representation in the Lok Sabha.
Since in India census takes place after every decade and as a result of which population of the state’s
increases necessitating adjustment of seats for the Lok Sabha and delimitation of constituencies, Article 82
of the constitution has, therefore, provided that upon the completion of each census the allocation of seats
in the Lok Sabha to the states and division of each state into territorial constituencies shall be readjusted,
provided that such readjustment shall have no effect on the representation in the House of the People until
the dissolution of the existing House.
Forty-Second Constitution Amendment Act, however, added a provision by which it was provided that such
readjustment shall take effect from such date as the President may, by order specify and until such
readjustment takes effect, any election to the House may be held on the basis of territorial constituencies
existing before such adjustment.
This Act has also provided that until relevant figures for the first census taken after the year 2000 have been
published, it shall not be necessary to readjust the allocation of seats to the states in the Lok Sabha and also
the division of each state into territorial constituencies.
Under the existing laws reservation of seats for the members of scheduled castes and scheduled tribes in
the Lok Sabha would have come to an end by January 1980. Forty-Fifth Constitution Amendment Act
extended this period by another ten years. The government headed by V.P. Singh decided to extend this
period by another 10 years i.e., up to the year 2000 A.D.
Since in India there is population explosion, a point has been made out that in case the number of seats in
the Lok Sabha is not considerably increased, elected and voter ratio will go on increasing and the Lok Sabha
shall not be a true representative body of the people.
In 1971, the then Chief Election Commissioner suggested that the strength of the Lok Sabha should be
increased from 545 to 570. According to him this will serve the double purpose. On the one hand the
electorates will have more and better chances to contact their members whereas on the other hand the
members of Parliament shall have reasonably medium size constituency.
But this argument was countered by Dr. Nagendra Singh, who said that the strength of the Lok Sabha should
not be increased. He argued that whether the population of constituency was less or more did not in any
way effect the touring of the member.
According to him the strength of the House of Commons in England since 1832 has practically remained the
same though the population of the country has increased from 15 to 55 million.
It is also argued that even if the population increases there is a marginal difference in so far as contact with
the masses is concerned, because only few people personally contact Members of the Lok Sabha. But so far,
the position is that the size of the Lok Sabha has not been increased beyond 545.
6. POWERS OF PARLIAMENT
The powers of Parliament are vast and extensive and are mentioned in various Articles of the Constitution.
Organ of Information
Another very important function that Parliament performs is that of serving as an organ of information.
Through the question hour and various other modes and procedures, Parliament is able to elicit from the
government information in the most authoritative manner.
The Prime Minister, as well as the other Ministers in the Cabinet and outside the Cabinet, are continuously
engaged in Parliament, or outside Parliament, in lecturing, talking, holding press conferences and expressing
their views on other public occasions, but no information revealed by them or elicited from them on such
occasion can be regarded as authoritative information which Parliament is able to elicit from them.
They may twist or distort or garble facts, if they do not want to reveal them fully, outside Parliament, but
they are expected to speak the truth and nothing but the truth at the time of answering questions or making
statements in Parliament.
Guardian of Privileges
Parliament is the guardian of its privileges and anybody infringing these privileges can be punished by
reprimand or expulsion of the membership of Parliament.
Control over Finance
Parliament has control over the finances of the country. No tax can be levied and no money can be spent
without the consent of Parliament, though the expenditure charged on Consolidated Fund of India is not
submitted to vote of the Parliament.
Providing the Cabinet
It follows from the above that the first function of Parliament is that of providing the Cabinet and holding
them responsible. Though the responsibility of the Cabinet is to the popular Chamber the membership of
the Cabinet is not necessarily restricted to that Chamber and some of the members are usually taken from
the Upper Chamber.
Control of the Cabinet
It is a necessary corollary from the theory of ministerial responsibility that it is a business of the popular
Chamber to see that the Cabinet remains in power so long as it retains the confidence of the majority in that
House. This is expressly secured by Article 75(3) of the Constitution.
Criticism of the Cabinet and of Individual Ministers
In modern times both the executive and the legislative policies are initiated by the Cabinet, and the
importance of the legislative function of Parliament has, to that extent, diminished from the historical point
of view. But the critical function of Parliament has increased in importance and is bound to increase if Cabinet
Government is to remain a ‘responsible’ form of Government instead of being an autocratic one.
In this function, both the Houses participate and are capable of participating, though the power of bringing
about a downfall of the Ministry belongs only to the popular Chamber (i.e., the House of the People) [Article
75(3)]. While the Cabinet is left to formulate the policy, the function of Parliament is to bring about a
discussion and criticism of that policy on the floor of the House, so that not only the Cabinet can get the
advice of the deliberative body and learn about its own errors and deficiencies, but the nation as a whole
can be appraised of an alternative point of view, on the evaluation of which representative democracy rests
in theory. Parliament participates in the election of the President and Vice-President of India.
Parliament has the power of removing the President of India through impeachment. The Vice- President of
India can be removed if a resolution for his removal is adopted by the Rajya Sabha and agreed to by the Lok
Sabha. The judges of the Supreme Court and the High Courts can be removed by the President only when a
request for their removal is make in the form of an address adopted by a special majority by both House of
Parliament.
Parliament has been invested with certain specific powers by the Constitution. Some of these relate to
citizenship matters, reorganisation of States and alteration of area, boundary or name of any State,
extending duration of Lok Sabha, and conferring supplemental powers on the Supreme Court,
adjudication of disputes relating to inter-State rivers, abolition or creation of Legislative Councils. The
Constitution gives Parliament the final discretion to prescribe and regulate the specific conditions for the
use of powers vested in different persons and bodies.
7. ORGANS OF GOVERNMENT OF INDIA
The government of India is known as the Union Government or the Central Government. In order to carry
out the functioning of the government the constitution provides three distinct branches namely; are the
Executive, the Legislative and the Judiciary. They constitute the entire governance of India. The Constitution
of India mentions the separation of powers between these three organs. Each organ has separate and
independent powers with different roles and responsibilities assigned to each department for the proper
functioning of the government. The three branches of the government are the Executive, the Legislative and
the Judiciary.
7.1 Executive Branch
The Executive consists of the President, Vice-President and Cabinet Ministers. This branch is led by the
President who is the head of the state. It, however, acts in accordance with the advice of the Prime Minister
who is the head of the government. The executive is responsible for executing laws and taking care of day
to day administration and functioning of the state bureaucracy. The executive is also responsible for the
formulation and execution of government policies. It also has the power to dissolve and summon Parliament,
call for new elections, dismiss the government of states and territories and declare an emergency in the
state. The President is the supreme commander of the armed forces and appoints the Prime Minister,
Cabinet Ministers and governors of states and union territories.
7.2 Legislative Branch
The Legislative is the policy-making body of the country. It makes policies, amends and replaces old laws.
This branch of the government is also called as the Parliament and includes the two houses called the Lok
Sabha (House of People), also known as the lower house and the Rajya Sabha (Council of States), known as
the upper house. Members of the Lok Sabha are directly elected while the Rajya Sabha members are
indirectly elected and nominated. The Prime Minister and the Council of Ministers are members of the
Parliament or are elected within six months of assuming their office.
The President is the head of the legislative branch and has special powers granted by the Constitution. The
President has the power to convene Parliament, to summon the Parliament to meet, send the message to
either house on any pending bill, decide on bills to be introduced in the Parliament and give final approval
to bills. Besides these powers, the Legislative branch also has the power to approve and remove members
of the Council of Ministers, amend Constitution when necessary, regulate state and union territory
boundaries and approve central government finances. The Legislative branch enjoys supremacy but not
complete sovereignty. Its laws are subject to judicial review by the judiciary of the Supreme Court of India.
7.3 Judiciary Branch
The judicial branch deals with the administration of justice. It is the guardian of the Constitution and the final
judicial authority. The judiciary is headed by the Supreme Court of India and consists of 24 High Courts and
many district-level civil, criminal and family courts. The Court has the power to resolve disputes between the
Executive and the Legislative as well as other public related matters or conflicts. It resolves disputes between
the Government of India and one or more states as well as between two or more states. It also functions as
an advisory referred to it by the President and has discretionary powers on any matter from any court, except
the armed services. It also acts as a court of record and supervises all the high courts.
8. LEGAL AID
The preamble of the Indian constitution aims to secure to the people of India justice – socio economic and
political. Article 38 and 39A of the Indian constitution are notable. Article 38(1) states- the State shall
promote the welfare of the people by securing and protecting the social order including justice and Article
39-A of the constitution states that the state shall in particular, provide free legal aid, by suitable legislation
or schemes, to ensure that opportunities for securing justice are not denied to any citizen.
In Sheela Barse vs. State of Maharashtra, it was held that legal assistance to a poor accused who is arrested
and put in jeopardy of his life or personal liberty is constitutional imperative mandated not only by article
39-A but also by article 21 and 14 of the constitution. Article 21 clearly says that every person has an equal
right to life and liberty except according to the procedure established by the law.
It was said in the case of Hussainara khatoon vs. State of Bihar, that if any accused is not able to afford
legal services then he has a right to free legal aid at the cost of the state.
8.1 PRIVY COUNCIL
The origin of Privy Council can be traced back to the Norman Period of English. At the beginning of 11th
century, the Normans introduced a Central Government in England for controlling their executive,
legislative as well as judicial Departments. There was a Supreme Federal Council of Normans. It was known
as ‘Curia’ and it acted as the agency of Normans to rule England. Through it the whole administration in
England was controlled. However, gradually with the passage of time, Curia gets divided into ‘Curia Regis’
and ‘Magnum Concillium’. Out of them, Magnum Concillium was to deal with executive matters whereas
Curia Regis performs judicial functions.
The Curia Regis was a small body consisting of high officials of the State, members of the Royal household
and certain clerks chosen by the Crown itself. Their duty was to advice the King in matters of legislation
and administration and to deliver a justice. In fact, the Curia Regis acted as a final Appellate Court for
England and English Empire. Gradually, the Curia Regis came to be considered as the advisory body of the
King performing most of the vital functions in the field of judicial administration. Finally, during the regime
of Henry II, there was a tremendous increase in the Judicial Functions of Curia Regis and it led to the
formation of two different Common Law Courts in England. They are:
1. King-in-Parliament i.e. Court of House of Lords
2. King-in-Counsel i.e. Court of Privy Council.
The former became the highest Court of Appeal for the Courts in England while the later acted as the
highest Court of Appeal for all British Possessions and Settlements beyond the seas. In this way, the Privy
Council was established during the middle of 16th century. It thus acted as the advisory body of the King
with regard to the affairs of the State. Headquarter of the Privy Council was at Landon and its powers were
implemented through the means of royal proclamations, orders, instructions etc.
Composition of Privy Council
As far as India is considered, the Privy Council acted as an appellate body since 1726 with the
establishment of Mayor’s Court in India. Earlier, the Privy Council used to do its work by means of a system
of committees and sub-committees. However, the committees did not have permanent existence and
membership and mostly members were the persons with little judicial experience. Naturally it affected the
administration of justice. In 1828, Lord Bourgham criticized such a constitution of Privy Council keeping in
view the extent and importance of the appellate jurisdiction of Privy Council. Subsequently, in 1830 he
became the Lord Chancellor and during his regime, the British Parliament enacted the Judicial Committee
Act, 1833 in order to reform the constitution of Privy Council. In this way, officially the Privy Council was
created on 14th Aug. 1833 by the Act of the Parliament. The Act empowered the Privy Council to hear
appeals from the courts in British Colonies as per the provisions of the Act. Accordingly, under this Act, the
quorum of judicial committee of Privy Council was fixed to be four. It composed of Lord President, Lord
Chancellor and other Chancellors holding judicial offices. This quorum was reduced to three in 1843. The
recommendations to the Crown were given by the majority of quorum. Thereafter, by means of the
Appellate Jurisdiction Act, 1908 this membership of the judicial committee was extended. It also
empowered His majesty to appoint certain members not exceeding two. These were nothing but the
judges of High Court in British India. Thus, some of the members of the Privy Council were the persons
versed in Indian Laws.
8.2 LOK ADALAT
The concept of Lok Adalat (Peoples' Court) is an innovative Indian contribution to the world jurisprudence.
The institution of Lok Adalat in India, as the very name suggests, means, People's Court. "Lok" stands for
"people" and the vernacular meaning of the term "Adalat" is the court. India has a long tradition and
history of such methods being practiced in the society at grass roots level. These are called panchayat and
in the legal terminology, these are called arbitration. These are widely used in India for resolution of
disputes? both commercial and non-commercial. Other alternative methods being used are Lok Adalat
(People's Court), where justice is dispensed summarily without too much emphasis on legal technicalities.
It has been proved to be a very effective alternative to litigation. The ancient concept of settlement of
dispute through mediation, negotiation or through arbitral process known as "Peoples' Court verdict"
or decision of "Nyaya-Panch" is conceptualized and institutionalized in the philosophy of Lok Adalat. Some
people equate Lok Adalat to conciliation or mediation, some treat it with negotiations and arbitration.
Those who find it different from all these, call it "Peoples' Court". It involves people who are directly or
indirectly affected by dispute resolution.
Camps of Lok Adalats were started initially in Gujarat in March 1982 and now it has been extended
throughout the Country. The evolution of this movement was a part of the strategy to relieve heavy
burden on the Courts with pending cases and to give relief to the litigants who were in a queue to get
justice. The first Lok Adalat was held on March 14, 1982 at Junagarh in Gujarat the land of Mahatma
Gandhi. Lok Adalats have been very successful in settlement of motor accident claim cases,
matrimonial/family disputes, labour disputes, disputes relating to public services such as telephone,
electricity, bank recovery cases and so on.
Legislation pertaining to Lok Adalats
The advent of Legal Services Authorities Act, 1987 gave a statutory status to Lok Adalats, pursuant to the
constitutional mandate in Article 39-A of the Constitution of India, contains various provisions for
settlement of disputes through Lok Adalat. It is an Act to constitute legal services authorities to provide
free and competent legal services to the weaker sections of the society to ensure that opportunities for
securing justice are not denied to any citizen by reason of economic or other disabilities, and to organize
Lok Adalats to secure that the operation of the legal system promotes justice on a basis of equal
opportunity. Even before the enforcement of the Act, the concept of Lok Adalat has been getting wide
acceptance as People's Courts as the very name signifies. Settlement of disputes at the hands of Panchayat
Heads or tribal heads was in vogue since ancient times. When statutory recognition had been given to Lok
Adalat, it was specifically provided that the award passed by the Lok Adalat formulating the terms of
compromise will have the force of decree of a court which can be executed as a civil court decree.
9. CODE OF CRIMINAL PROCEDURE 1973
In the olden days, there was no uniform law relating to criminal procedure for the whole of India. There were
separate Acts, mostly rudimentary in their character, for the Courts within and outside the Presidency-
towns. Later on, the Acts in force in the Presidency-towns were consolidated into the Criminal Procedure
Supreme Court Act, 1852, subsequently replaced by the High Court Criminal Procedure Act, 1865. The
numerous Acts prevailing in the mofussils were all absorbed in the Criminal Procedure Code, 1861, which
was subsequently replaced by the Code of 1871. The Criminal Procedure Code, 1882, gave a uniform law of
procedure for the whole of India, both in the Presidency-towns and in the mofussils, and it was
supplemented by the Code of 1898. The last-mentioned Code was amended several times, with major
amendments in 1923 and 1955.
The Law Commission, set up in 1955, studied the old Code extensively, and made various recommendations
and suggestions in its detailed report submitted in September 1969. These suggestions were incorporated
in the Criminal Procedure Code, 1973, which came into force on 1st April 1974, and which has since been
amended several times thereafter. While drafting the Code, the following three basic considerations have
been kept in mind, viz.—
(a) That an accused person should get a fair trial in accordance with the accepted principles of natural
justice;
(b) That every effort should be made to avoid delay in investigation and trial, which is harmful, not only to
the individual involved, but also to the society;
(c) That the procedure should not be complicated, and should, to the utmost extent possible, ensure a fair
deal to the poorer sections of the community.
10. HISTORY OF COURTS (CIVIL AND CRIMINAL)
Mayors Courts
The story of India’s modern judiciary begins with the Mayor’s courts. Under the Royal Charter of 1661, the
Governor-in-Council of each Presidency {That time they had two presidencies viz. Madras and Surat} were
empowered / ‘to judge all persons belonging to the said presidency or that shall live under them in all causes,
whether civil or criminal, according to the laws of this Kingdom and to execute judgement accordingly’/. This
power was not exercised for at least two decades at Madras. In 1678, the Governor-in-Council decided that
they should have two sittings per week to hear and judge all cases concerning Europeans and Indians.
Meanwhile in 1687, another charter authorized the company to establish municipality at Madras to mark
the beginning of territorial character of Company’s rule in Madras. In exercise of this power, the company
established a municipality. The Mayor and Aldermen were recognized as a “Court of Record” with power to
try the civil and criminal cases in their territories. The Mayor and three of the twelve Aldermen were so
called to be the “Justices of the Peace”. Similar courts were established in successive presidencies at Bombay
and Calcutta.
Under the Charter of 1726, a Mayor’s court was established at each presidency town viz. Madras, Bombay
and Calcutta. The difference between the old courts and this new court was that the earlier Mayor’s courts
were of the Company but the newer courts were of the King of England. The terms in the charter made is
implicit that English Law had to be applied in the Mayor’s Courts in India.
However, meanwhile French occupied Madras and this system remained suspended till 1749 when French
surrendered Madras back. The Charter of 1753 was passed later to remove the difficulties of previous charter
including the courts. Under the new charter, the Mayor’s courts were put under the Governor-in-council to
avoid disputes between the two. However, still judiciary suffered from lack of legal knowledge,
overburdened executive, failure of impartial judgment, lack of local judges etc.
Supreme Court at Calcutta
Regulating Act of 1773 established for the first time the Supreme Court of Fort Williams in Calcutta in 1774,
consisting of the Chief Justice and three judges (later reduced to two) appointed by the Crown acting as
King’s court. Thus, establishment of this Supreme Court was / ‘an act of reformation rather than of
innovation/ ‘, for it was intended ‘in fact to occupy the position of the Mayor’s Court founded in 1727 (under
the Charter of 1726). This court was adorned with powers such as power to punish for its contempt, power
to try civil & criminal cases, ecclesiastical and admiralty jurisdiction etc. Appeals against this court could be
taken to King-in-Council.
Conflict between legislative and executive
The ambiguities of the Regulating Act 1773 led to frequent spats between the Supreme Court and the
Governor General in Council. In 1781, this was remedied by substantially curtailing the powers of the
Supreme Court in favour of the Governor-in-council. However, an attempt was made to separate the judicial
meetings of the council with its executive meetings.
Recorder’s Courts
Due to increased activities of the Company, the need was felt to establish new courts. On February 1, 1798,
the King issued another charter to establish two Recorder’s Courts at Madras and Bombay. Each Recorder’s
court was made of one Recorder, one Mayor and three Aldermen of the Corporation. The Recorder’s court
was same as that of Supreme Court of Calcutta in terms of powers, functions and limitations /except in
composition/. In 1801 and 1824 Supreme Courts were established in Madras and Bombay respectively. The
Constitutional powers, functions, limitations and jurisdiction of these courts were the same as that of the
Supreme Court at Calcutta. These Supreme Courts functioned until 1862 when they were replaced by the
High Courts at all the three places.
Mofussil Adalats
Mofussil means rural i.e. the places away from Company’s Presidency towns. The Company had attained the
Diwani of Bengal, Bihar and Orissa in 1765. Warren Hastings established the /Mofussil Faujdar Adalat/ as
court of criminal jurisdiction and /Mofussil Diwani Adalat/ as court of civil jurisdiction and Small Cause
/Adalat/. The appeals from these courts could be taken to /Sadar Nizami Adalat/ {criminal court of appeals}
/Sadar Diwani Adalat/ {civil court of appeals}. By that time Zamindars were also doing some kind of Judicial
functions which Warren Hastings abolished. Warren Hasings is also known to have brought the judicial
proceedings in writing and appointment of Indian judges in Faujdari adalats.
The system of judiciary had undergone change under Lord Cornwallis in 1787, 1790, and 1793. He thoroughly
reorganized the civil and criminal judicial system in Bengal, Bihar, and Orissa and introduced the principle of
administration according to law. The system under Cornwallis was of a three tier judiciary as follows:
Civil Judiciary
Lowest Court was the /Amin Court/ or /Munsif Court/ for cases involving value less than Rs. 50. Higher was
Diwani Adalat or District court headed by a Session Judge. Higher than Diwani Adalat was the Provincial
Court of Appeal. Four provincial Courts of appeal were set up at Dhaka, Calcutta, Murshidabad and Patna.
After provincial court, the Highest Court of Appeal was set up which was called “Sadar Diwani Adalat”. The
headquarters of Sadar Diwani Adalat was at Calcutta and it was the Highest Court of Appeal. Its judge was
supported by a Head Qazi, two Muftis and Two Pandits. The appeals from “Sadar Diwani Adalat” could be
submitted to the King in England. The King of England only entertained those cases whose value was more
than 5000 rupees.
Criminal Judiciary
At Taluka / Tahsil level, there was a Darogh-i-Adalat. Its judge was Darogha, who was an Indian judge. Appeals
from Darogha could be taken to “District Criminal Courts”. The judge of this court was a Session Judge. To
hear the criminal appeals from District courts, four circuit Courts at Murshidabad, Dhaka, Calcutta and Patna
were stablished. The Highest court of Criminal appeal was in “Sadar Diwani Adalat” at Calcutta, which used
to sit once in a week. It was supervised by Governor General in council. Lord Cornwallis also abolished the
Court fee and asked the lawyers to prescribe their fee. He also abolished inhuman punishments of Mughal /
sultanate era such as cutting limbs, cutting nose and ears etc.
Establishment of High Courts
The year 1861 also constituted a conspicuous landmark in the process of development of legal and judicial
institutions in India. It was during this year that the steps were taken to establish High Courts at Calcutta,
Madras and Bombay. These High Courts were not only better instruments of justice than the preceding
courts, but also represented the amalgamation of the hitherto existing two disparate and distinct judicial
systems, the Company’s Courts in the Provinces of Bengal, Bombay Madras, and the three Supreme Courts
(established by the Royal Charter) in the Presidency town.
Indian High Courts Act 1861
The Indian High Courts Act of 1861 was passed by British Parliament to authorize British monarch to create
high Courts in India. Objective of this act was to affect a fusion of the Supreme Courts and the Sadar Adalats
in the three Presidencies. The High Courts of Calcutta, Madras and Bombay were established in their place.
Each high court was to consist of a Chief Justice and not more than 15 regular judges. The High Courts
enjoyed the same power over all persons and estates and had original, appellate and extraordinary original
jurisdiction in civil cases whereas extraordinary and appellant jurisdiction in criminal cases. Later, more high
courts were established at Allahabad (1875), Patna (1912), Lahore (1865) etc. Appeals from the High Courts
would be now taken to Privy Council.
Federal Court and Supreme Court of India
A Federal Court at Delhi was established under the Government of India Act 1935. This court served as
immediate precursor to current Supreme Court of India. It was composed of a Chief Justice and not more
than six judges. It had original, appellate, and advisory jurisdiction. Its exclusive original jurisdiction was in
all disputes between the federation and the units or between the units of the proposed federation. Appeal
from the federal court could go to Privy Council without leave in case of original jurisdiction and with leave
for any other matter. The Constituent Assembly passed the Abolition of Privy Council Jurisdiction Act in 1949
to abolish the jurisdiction of the Privy Council in respect of appeals from India and also to provide for pending
appeals. With this, India’s supreme Court was established at top of the unitary judicial system in India.
Judiciary debates in Constituent Assembly
The members of the Constituent Assembly envisaged the judiciary as the bastion of rights and justice. They
wanted to insulate the courts from attempted coercion from forces within and outside the government.
Sapru Committee Report on judiciary and the Constituent Assembly’s ad hoc committee on the Supreme
Court report formed the bulk of the guidelines for judiciary. A.K.Ayyar, K.Santhanam, M.A.Ayyangar, Tej
Bahadur Sapru, B.N.Rau, K.M. Munshi, Saadulla and B.R. Ambedkar played important roles in shaping the
judicial system of India. The unitary judicial system seems to have been accepted with the least questioning.
The Supreme Court was to have a special, countrywide responsibility for the protection of individual rights.
Ambedkar was perhaps the greatest apostle in the Assembly of what he described as ‘one single integrated
judiciary having jurisdiction and providing remedies in all cases arising under the Constitutional law, the Civil,
or the criminal law, essential to maintain the unity of the country’.
11. JURISDICTION AND POWERS OF SUPREME COURT
The Supreme Court of India is a powerful judiciary. The Constitution of India has defined its jurisdiction and
powers in detail, it has Original, Appellate and Advisory Jurisdictions Besides these jurisdictions, it has a few
other important functions.
Original Jurisdiction
The original jurisdiction of the Supreme Court is mainly confined to cases regarding the interpretation of the
provision of the Constitution which arise between the Union and the States or between the States
themselves. No other Courts can entertain such cases.
The Supreme Court has exclusive jurisdiction in the following types of cases:
(a) Disputes between the Government of India and one or more States.
(b) Disputes between the Government of India and any State or Stales on one side and one or more States
on the other
(c) Disputes between two or more States which involve any question of law or fact on which the existence
or extent of a legal right depends.
Thus, the original jurisdiction of the Supreme Court includes the cases where either the Union and Units or
the federating units are parties. Here the Supreme Court may safeguard the State Governments against the
Central encroachment or vice-versa. The Supreme Court is thus expected to act as a balance-wheel in our
federation.
The original jurisdiction of the Supreme Court does not include disputes between citizens of different States
or those between one State and the resident of another State. Such disputes may come before it under its
appellate jurisdiction.
But under Article 32 of the Constitution, a citizen can approach the Supreme Court directly for the
enforcement of his Fundamental Rights. In that case the Supreme Court has power to issue directions or
orders in the nature of writs of habeas corpus, mandamus, prohibition, quo-warranto, and certiorari or all
of them for the enforcement of Fundamental Rights. It may be noted that this jurisdiction of the Supreme
Court is not exclusive. The High Courts have also the same power to issue writs for the enforcement of
Fundamental Rights.
Appellate Jurisdiction
The Supreme Court of India is the highest Court of appeal in the country. It can hear appeals from cases
decided by the High Courts and other Tribunals in the States except cases tried by a Court Martial. No appeal
can be made to the Supreme Court against the decisions of Military Tribunals. Cases where an appeal can be
made to the Supreme Court may be classified as below: -
(a) Constitutional Cases:
The Supreme Court can admit Ian appeal from all High Courts if the High Court certifies that the case involves
a substantial question of law as to the interpretation of the Constitution.
Where the High Court has refused to give inch a certificate the Supreme Court may, if it is satisfied that the
case involved substantial question of law as to the interpretation of the Constitution, grant special leave to
appeal from such Judgment, decree or final order. Such a certificate is given or such leave is granted, if any
party in the case made appeal to the Supreme Court on the ground that the question has been wrongly
decided or on any other grounds.
Such cases may be criminal, civil, or other proceedings which should have a constitutional bearing on
constitutional law in the opinion of the Supreme Court. Thus, the opinion of the Supreme Court and not that
of the High Court is final on the question of constitutional interpretation.
(b) Civil Cases:
On all civil cases decided by the High Courts an appeal can be made to the Supreme Court if the High Court
certifies-
(I) That the case involves directly or indirectly some claim of property of important nature, or
(ii) That the case is fit one for appeal as it involves substantial question of law. The High Court certifies that
the case is a fit one to appeal or in the absence of such certificate of the High Court, the Supreme Court
grants special leave to appeal.
(c) Criminal Cases:
On the judgment of a High Court on criminal cases, appeal can be made to the Supreme Court if the High
Court:
(I) Has on appeal reversed an order of acquittal of an accused person and sentenced him to death, or
(ii) Has withdrawn for trial before itself the cases from any Court subordinate to its authority and in such trial
convicted the accused person and sentenced him to death, or
(iii) Certifies that the case is a fit one for an appeal to the Supreme Court subject to such provision contained
in the rules made by the Supreme Court in that behalf.
Even in the absence of all these conditions the Supreme Court may grant special leave to appeal to any case
decided by the High Court. Article 136 of the Constitution confers discretionary powers on the Supreme
Court to grant special leave to appeal from any decision of any Court or Tribunal in the country other than a
Court Martial. It means that the leave to appeal may be granted to any case without having the necessary
limitations enumerated above. The power of the Supreme Court to grant special leave to appeal is not
subject to any constitutional limitation.
As D. D. Basu writes, “broadly speaking the Supreme Court can exercise this power to grant leave to the
aggrieved party in case where the principles of natural justice have been violated even then the party may
have no footing to appeal as of right.”
Further the Constitution provides for the enlargement of the jurisdiction of the Supreme Court by an act of
Parliament. The Parliament may, by law, confer on the Supreme Court power to issue directions or writs for
any purpose other than the enforcement of fundamental rights.
It again may, by law, make provision for conferring on the Supreme Court such ancillary powers as may be
necessary to enable it to perform the functions placed upon it under the Constitution. But such law of the
Parliament must not be inconsistent with any provisions of the Constitution.
Advisory Jurisdiction:
Besides the original and appellate jurisdictions enjoyed by the Supreme Court, it has also advisory jurisdiction
on matters of constitutional importance. Article 143 of the Constitution provides that if at any time the
President thinks that a question of law or fact has arisen or is likely to arise, which is of such a nature and of
such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer
the question to the Supreme Court for consideration and the Court, after such hearing, as it thinks fit, reports
to the President its opinion thereon. It is only the advisory or consultative power of the Supreme Court. The
President is not bound to accept the advice of the Supreme Court. However, it is expected that the advisory
opinion of the Supreme Court may be final as it is the highest Court of the land.
This provision is included in our Constitution to enable the President to take a decision in the light of the
judicial opinion in matters in which he may have doubt. To a certain extent the similar jurisdiction is
possessed by the Canadian Supreme Court.
Some of the important references made to the Supreme Court by the President are:
(I) Kerala Education Bill (1959).
(ii) The Indo-Pakistan Agreement in respect of Beru-Bari Union and the exchange of Cooch-Bchar Enclaves
(1960).
(iii) The conflict between the U.P. Legislature and the Allahabad High Court (1964).
(iv) Validity of the Special Courts Bill (1978).
(v) Conflict between union Executive and the Election commission over Gujarat election (2001).
It may be relevant to note that the Government have accepted the advisory opinion of the Supreme Court
as authoritative and amended the Constitution wherever necessary.
The Supreme Court as a Court of Record
Besides the original, appellate and advisory jurisdiction, the Supreme Court of India possesses a few more
powers. Article 129 of the Constitution makes the Supreme Court a Court of Record. The Court of Record in
popular sense means a superior Court whose decisions and judicial proceedings have evidential value and
cannot be questioned by any other subordinate Court. Further, the Supreme Court has power to punish
individuals for its contempt.
The Supreme Court is authorised with the approval of the President of India and subject to any law made by
the Parliament, to make rules for regulating the practice and procedure of the Court.
These mainly include the rules regarding the practice of persons before Court, the procedure for hearing
appeals, granting of bail, stay of proceedings etc. The Supreme Court has also the power to review its own
decisions and orders and thereby may rectify the wrong if any in its judgment. This power to review its own
judgment is necessary because there is no appeal against its judgment. This power is, however, subject to
the provisions of laws made by the Parliament or rules made by the Supreme Court.
The Supreme Court as the Guardian of the Constitution:
The Supreme Court acts as the guardian of the Constitution in India. In a Federal State, the Constitution is
supreme law of the land and the judiciary is usually vested with power to protect the constitutional
provisions. The Supreme Court of America is the guardian of its Constitution.
Although there is no specific provision in the Constitution of India declaring the Supreme Court as the
guardian of the Constitution, it is implied that in a Federal State, the Supreme Court is to protect the
Constitution and act as a balance-wheel between the Centre and the federating units.
The Parliament and the State legislatures are supreme within their respective spheres. The Executives are
made subservient to constitutional laws and regulations. If some of them exceed their limited authority the
Supreme Court has power to restrict them.
The final interpretation of the Constitution is left to the Supreme Court. Chief Justice Hughes of America
once remarked, “Constitution is what the judges say it is” ‘. This idea holds true in almost all federal
Constitutions.