Any legal system encompasses a set of legal principles and norms to protect and promote a secure living to its subjects in a cultured society. It recognizes rights, prescribes duties of people and provides the ways and means of enforcing the same. To achieve this particular objective, the legal system considering the sociological, economic and political conditions in the society designs its own goals and evolves a set of principles/rules/laws which help the society to attain its identified goals.
In this context the Constitution of India has declared India as a Socialist, Secular, Democratic Republic and accordingly enshrined numerous principles to achieve the avowed objectives set out in its preamble.
Law implies a bundle of rules regulating the conduct of human beings in a given society. The Constitution of a country is a written document that is the touchstone of all laws, rules and regulations. It depicts the collective will of millions of people describing the methods by which the power conferred on the state is to be exercised for the benefit of people.
The Indian Constitution provides in its preamble that the State shall endeavour to secure to all its citizens:
"Justice, social, economic and political ;Liberty of thought, expression, belief, faith and worship;Equality of status and of opportunity, and to promote among them all
Fraternity assuring dignity of the individual and the unity of the Nation.
To achieve the above objectives, the Constitution guarantees certain Fundamental Rights to uphold the dignity of the individual with justice, liberty and equality and also provides for its easy enforcement through courts and other quasi-judicial authorities. Some of these basic rights or fundamental rights guaranteed by our Constitution are as follows:
Right to Equality; Protection of life and personal liberty,
Right to freedom of speech, of assembly, of association, of movement and of profession or occupation;
Right to freedom of religion; Protection of interests of minorities and
Right to constitutional remedies for enforcement of the above rights, etc.
Besides the fundamental rights, the Constitution also provides for certain Directive Principles that are as sacrosanct as the Fundamental Rights.
State action in every sphere is endorsed in the light of these two fundamental chapters of the constitution. The Constitution has vested vital functions of the State in three organs of the government viz., Executive, Legislature and Judiciary. While the Executive has the power to administer laws and carry out the business of government through such bodies as government departments, statutory authorities and the defence forces; Legislative power is the power to make laws. Judicial power is the power traditionally exercised by courts such as the conduct of criminal trials and determining disputes in relation to such things as contracts and motor accidents.
Our Constitution places Judiciary at a higher and independent position than the other two organs such as to oversee the functioning of the other two organs. Under no
circumstances, can the other two organs interfere with the independence
of Judiciary and thus ensure that the constitutional guarantees are
safeguarded to the citizens.
As mentioned above, Constitution vests the law making power in the
Legislature. They may be enacted by either the Central or State
legislatures. At present, we have numerous, varied and complex laws in
our country to suit the rapid and dynamic changes occurring in multifarious
facets of the society.
Broadly speaking laws may be classified as Civil and Criminal. Civil law
takes within its fold rights, duties and obligations of individual members of
the community whereas Criminal law enfolds wrongs done against the
community as a whole. A few acts that attract a civil action include
trespass, negligence, breach of contract, matrimonial causes, etc., Acts
which entitle an individual for a criminal remedy include murder, criminal
conspiracy, cheating, food adulteration, etc., to name a few.
The remedies and procedure for civil law and criminal law are different. The
remedies for civil wrong for example, include claim for compensation or
specific performance or injunction or such other remedies. The remedies
under Criminal law is primarily to award punishment to the guilty and to
compensate the victim for his/her grievance under some circumstances.
Both Civil Law and Criminal Law have two segments of each viz.,
Substantive Law which forms part of the theoretical aspect of each and
Procedural Law which deals with the practical application of law and the
method of enforcement of Substantive Law. Judicial proceedings will be
decided in the light of the substantive law, relevant procedural law and
Whenever there is a threat for the enforcement of fundamental rights
against State or its Agencies, writ jurisdiction of High Courts and
Supreme Court can be invoked.
The Constitution has guaranteed the fundamental right to constitutional
remedies through adjudication or dispute settlement machinery. This
machinery comprises of Judicial Authorities and Quasi Judicial Authorities
which include Courts and Tribunals respectively. In civil matters, the
cases may be taken up by courts of competent jurisdiction laid down
under the provisions of Civil Procedure Code. Valuation of suits for
purposes of jurisdiction are made according to Suits Valuation Act.
The Court Fees Act prescribes the amount of court fees to be paid on plaints and appeals.
The Constitution lays down two golden rules of procedure to be applied in any legal or judicial process viz., Notice should be given to the party against whom any legal process has to be initiated and None shall be condemned unheard which means that before deciding any legal cause, an opportunity of hearing should be given to the parties. These principles are meant to conduct judicial proceedings in a fair and unbiased manner.
Besides the above, the judgment in any case shall be unbiased. Our legal system follows the adversarial method wherein two parties oppose each other in a suit or action between the articles.
In civil cases, the person seeking a legal remedy files his pleadings /plaint in the court to which the other person against whom the cause of action lies files a written statement to admit or deny the allegations made in the plaint. The parties lead evidence supporting their own cases, which are supplemented
by admissions of fact, answers and interrogatories, etc., with the help of
either oral or documentary evidence. After hearing both the parties, the
court pronounces its judgment.
In Criminal proceedings, the principles laid down in the Criminal Procedure
Code and the Evidence Act are applied. The object behind a criminal
proceeding is to ascertain whether the accused is guilty of the offence
charged and if so, to decide the quantum of punishment to be
Criminal Proceedings are conducted in four stages - viz., investigation, prosecution, trial and disposition. Crimes beings wrongs against the society, the State undertakes the prosecution on behalf of the victim. On
receipt of information about the commission of offence, the policy
conducts investigation, arrest the suspects, search for materials and seize
property connected with the crime. However, when they arrest a person,
he/she should be produced before the Magistrate within 24 hours. They
ought not to use third degree methods during interrogation. Confessions
made to police officers are not admissible as evidence in court. The
arrested person has the right to choose and seek the professional services
of a lawyer and he cannot be compelled to give evidence against himself
or herself. In cases where the offence is a bailable offence, they are
bound to release the person on bail.
One of the established principles of Criminal Law is that every accused is presumed innocent until he/she is proved to be guilty beyond a reasonable doubt. The defendant or his counsel has the right to cross examine the prosecution witness. However, he cannot be questioned as a witness
unless he consents to be a witness in his own defence. At the end of the
trial if the Judge finds him guilty, he has a right to be heard on the
determination of sentence. Since the modern criminal justice emphasises
on reformation and rehabilitation of offenders rather than deterrence and
retribution, a deserving convict may be awarded a correction treatment as
part of sentence.
As our legal system recognizes the human values and human dignity, equal opportunity of right to counsel is given to all individuals both at the trial and pre-trial stages. In this context, the legal system provided for legal aid schemes to protect the interests of poor and needy people.
Apart from the dispensation of justice by courts, there are a wide variety of adjudicative procedures followed through Tribunals, Quasi-Judicial,
administrative agencies, arbitration councils, nyaya panchayats etc.,
where private disputes are settled through informal procedures. The advantages of these procedures are that they are less cumbersome, cheap and expeditious.
The machinery which enforces legal rights and obligations include Judges, Advocates, other offices / staff of the court and para-legal personnel who assist the lawyers and judges.
The hierarchy of courts is as follows:
· Supreme Court
· High Courts
· Subordinate Courts - Special Courts / Tribunals
· District and Sessions Court
· Civil Courts (District Judge) Criminal Courts (Sessions Judge)
· Civil Judge Assistant Sessions Judge
· Chief Judicial Magistrate
Supreme Court is considered to be the apex body in judicial hierarchy. The law laid down by the Supreme Court is binding on all High Court and other courts. Besides the courts mentioned above, certain Statutes / Acts provide for the constitution of Special Tribunals which oust the jurisdiction of civil courts. A few examples of Tribunals are the Income Tax Tribunal, Sales Tax Tribunal, Industrial Tribunal, Administrative Tribunal, Motor Accident Tribunal etc.,The procedure in civil cases may be summed up briefly as under:
1. Filing of Plaint
2. Finding of a prima facie case
3. Issue of Summons to opposite party
4. Filing of written statement by the defendant
5. Framing of Relevant issues
6. Hearing of the parties supported by Evidence
7. Arguments of the parties
8. Judgment of the Court on the issues framed and the relief allowed or disallowed, with or without costs
9. Execution of Decree. The person in whose favour the decree is given is known as the judgment - holder and the person against whom it is enforceable is known as the judgment debtor. For enforcement or execution of a decree the court can attach and sell the property involved, eject the judgment debtor, arrest and detain him, appoint a receiver, auction the property, etc.,
Civil Procedure Code provides persons dissatisfied with the judgement to prefer an appeal to a higher court or seek a review on some new facts from the same court. In limited cases, where no appeal lies, a superior court can allow a revision of judgment of the lower court as well.
Procedure in Criminal Cases:
What acts and omissions fall within the definition of Crimes are provided under the Indian Penal Code and various other special statutes. The Indian Penal Code has distinguished offences into various categories like cognizable and non-cognizable, bailable and non-bailable, compoundable and non-compoundable. In a nutshell, the procedure for conduct of criminal cases partakes the following.
1. Filing of FIR, which means First Information Report.
2. Inquiry and Investigation
3. Search and Seizure
4. Arrest. In case of an offence that is cognizable, police can
instantaneously arrest the suspects even without a warrant issued by the Magistrate. This is not possible in case of a non-cognizable offence.
5. Submission of report of the Investigating Police Officer to Magistrate on the basis of which a charge sheet is framed against the suspected offender.
6. Finding of a prima facie case by the Magistrate. If the Magistrate finds that there is no prima facie case, he dismisses the complaint recording his reasons thereof. In case he finds that there is a prima facie case, he issues summons to the accused.
7. Trial of the case, which may take either the form of Summary trial, Summons trial, and Warrant trial. In the first type of trial, the Magistrate hears the case summarily, recording only the substance of evidence. The maximum punishment, which can be given in these cases, is a fine or imprisonment of three months. In a Summons trial there is no necessity to frame a formal charge. The accused is informed about the particulars of the offence and, if he pleads guilty, the plea is recorded and he is
convicted. If he does not plead guilty, then on the basis of the statement
given by him and the evidence of the prosecution and other evidence, the
Magistrate either convicts or acquits him. In this category of cases, the
complainant may withdraw or compromise the case. Under the third type
of trial, the trial can proceed either on police report or on a complaint.
When the accused appears before the Court of Sessions, the prosecutor
describes the charges and the evidence he proposes to advance. In a
preliminary hearing, the Magistrate considers the version of both the
prosecution and the accused and examines the materials before him. If he
finds that there is no sufficient ground to proceed, he discharges the
accused. Otherwise, he frames charges against the accused and either
tries the case himself or refers it to an appropriate judge. If the accused
pleads guilty he may be convicted. Otherwise, the normal course of
examining the prosecution evidence, seeking the explanati
on of the accused on such evidence, evidence supporting
defence, arguments, judgment, acquittal or conviction it proposes to advance will be intimated
to the accused. The accused will also be heard on the aspect of punishment
if he is found guilty.
8. If the offences committed by the accused are of a minor nature, they may be compounded which has the effect of an acquittal. Sometimes the public prosecutor may withdraw a case with the permission of the court. The Constitution guarantees the right to legal aid in criminal proceedings to indigent accused. Another cardinal principle of Constitutional law is that a person tried and convicted and acquitted of an offence cannot be tried again for the same offence. A parallel principle applicable to civil cases is that of 'res judicata'.
Certain provisions of the Constitution (Art.323A and 323B) provide for the establishment of Administrative Tribunals and other Tribunals to settle matters relating to Recruitment, Promotion, Condition of Service and other allied matters concerning the employees of the Central and State Governments, including local and other authorities within the territory of India. The main object behind setting up these tribunals is to give a speedy remedy through informal method for settlement of disputes. Tribunals are of three types:
1. The Central Administrative Tribunal
2. State Administrative Tribunal and
3. Joint Administrative Tribunal.
As the names clearly indicate, the jurisdiction, power and authority of these tribunals is specifically demarcated. A Joint Administrative Tribunal exercises its jurisdiction, power and authority in those states in which the Joint Administrative Tribunal is set up.
The scope of Art.323B extends to the following matters:
1. Levy, assessment, collection and enforcement of any tax;
2. Foreign exchange, import and export across customs frontiers;
3. Industrial and Labour disputes
4. Land reforms by way of acquisition by the State of any estate as defined in Art.31A or of any rights therein or the extinguishments or modification of any such rights or by way of ceiling on agricultural land or in any other way.
5. Ceiling on urban property;
6. Elections to either House of Parliament or the House or either House of the Legislature of a State, but excluding certain matters referred to in Art.329 and 329A;
7. Production, procurement, supply and distribution of food-stuffs or such other goods declared as essential commodities by the competent authority;
8. Rent control, its regulation, title, tenancy and interest issues;
9. Offences against laws specified above and fees in respect of any of those matters;
10. Any matters incidental to the aforesaid list.
Laws relating to the constitution of these tribunals shall necessarily provide for the hierarchy of the Tribunals, jurisdiction, powers, procedure, exclusionary jurisdiction of all courts except Supreme Court, transfer of cases from falling within the jurisdiction of concerned tribunals from relevant courts, and such other provisions are as necessary for the effective functioning of Tribunals and expeditious dispensation of cases.
One important aspect to be remembered is that the decisions of Tribunals are amenable to the scrutiny of Division Bench of High Courts and Supreme Court under Articles 226 and 32 of the Constitution respectively.