1 ils fundamentals

8/12/2019 1 Ils Fundamentals

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Prof. V.K. Unni

IIM Calcutta

E-mail: [email protected]

Fundamentals of Indian Legal System


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Law is an instrument of social control whose objective is togive everyone his due.

Whenever wrongs are committed against the society orindividuals, law steps in to provide a remedy

Wrongs committed against the society are called crimes, andthus it becomes the duty of the State to protect the societyfrom offenders.

So prosecutors have been appointed by the Government toconduct criminal cases before Courts of Law.

However, disputes relating to property, breach of contracts,wrongs committed in money transactions, minor omissions etcare categorized as civil wrongs.


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In such cases civil suits should be initiated by the aggrieved persons.

Courts of law administer justice by considering the nature of the

wrong done.

Criminals are convicted and punished before criminal courts.

Civil wrongs are given remedies before civil courts by granting

injunctions or by payment of damages or compensation to the

aggrieved party.

Hierarchy of Courts

Every suit should be instituted before the court of lowest

jurisdiction.

In the civil side the Munsif's Court is the court of lowest jurisdiction


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If the value of the subject matter of the suit is worth rupees onelakh or below, the Munsif's Court is the competent court to trythe suit, this monetary value may vary from state to state

If the value exceeds above rupees one lakh the suit should befiled before the Subordinate Judge's Court (Sub Court), this

monetary value may vary from state to state An appeal from the decisions of the Munsif is filed before the

District Court.

Appeals from the decisions of the Sub Court is filed before theDistrict Court if the subject matter of the suit is of value up to

rupees two lakhs. If the value is above two lakhs, the appeal should be filed

before the High Court and next to the Supreme Court


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Administration of criminal justice is carried out through MagistrateCourts and Sessions courts.

The Court at the lowest level is called Judicial Magistrate of the

second class.

This Court is competent to try the case if the offence is punishablewith imprisonment for a term not exceeding one year, or with fine

not exceeding five thousand rupees, or with both.

The First Class Magistrate is competent to try offences punishable

with imprisonment for a term not exceeding three years or with fineup to ten thousand rupees

The Chief Judicial Magistrate can impose any fine and punishment

up to seven years imprisonment


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The Assistant Sessions Judge is competent to impose punishments upto ten years imprisonment and any fine.

The Sessions Judge can impose any punishment authorized by law; butthe sentence of death passed by him should be subject to theconfirmation by the High Court.

High Court

High Court stands at the head of a State's judicial administration

Each High Court comprises of a Chief Justice and such other Judges asthe President of India may, from time to time, appoint.

The High Court has original and appellate jurisdiction

Original Jurisdiction means that all such cases begin or originate inthat court only, while appellate jurisdiction deals with the power of asuperior/higher court to hear and decide appeals against the judgment

of a lower court


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Each High Court has power to issue to any person within itsjurisdiction writs, orders or directions.

Writs are in the nature of habeas corpus, mandamus, prohibition, quo

warranto and certiorari for enforcement of Fundamental Rights and for

any other purpose The High Court has the power to withdraw cases from the subordinate

courts if the case involves a substantial question of law as to the

interpretation of the constitution.

Supreme Court

The Supreme Court is the highest court in the country.

It has original, appellate and advisory jurisdiction.


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Original Jurisdiction

Original Jurisdiction means that all such cases begin or originate in

that court only. ( in other words such cases cannot be initiated in any

other court)

According to the Constitution the Supreme Court has originaljurisdiction in the following cases

(a) Disputes between the Government of India on the one side and one

or more States on the other side.

(b) Disputes between the Government of India and one or more States

on one side and one or more States on the other side.

(c) Disputes between two or more States


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(d)The Supreme Court has also been invested with special powers inthe enforcement of Fundamental Rights. (In this connection, it has the

power to issue directions or writs)

Appellate Jurisdiction

The power of a superior/higher court to hear and decide appealsagainst the judgment of a lower court is called appellate jurisdiction.

The Supreme Court has extensive powers dealing with appellate

jurisdiction.

It hears appeals against the judgment of the High Courts and thus, it isthe highest and the final Court of Appeal

If one of the parties to a dispute is not satisfied with the decision of the

High Court, it can go to the Supreme Court and file an appeal


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Advisory Jurisdiction This power implies Courts right to give advice, if sought.

Under advisory jurisdiction, the President of India may referany question of law or public importance to Supreme Court for

its advice. But the Supreme Court is not bound to give advice.

In case, the advice is sent to the President, he/she may or maynot accept it.

Writs Indian Constitution confers original jurisdiction on the

Supreme Court to issue directions, orders or writs for theenforcement of fundamental rights.


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Fundamentals of Indian Legal System Similar powers are also conferred on the High Court by the

Constitution.

The writ jurisdiction of the High court is wider than that of theSupreme Court.

The High Court can issue writs for the violation of fundamental rights

or for any other purpose There are five types of Writs- Habeas Corpus, Mandamus, Certiorari

Quo warranto and Prohibition and all abovesaid writs can be issued bySupreme Court and High Courts

Habeas Corpus:

"Habeas Corpus" is a writ issued to release a person who has beendetained unlawfully whether in prison or in private custody.

When the writ is issued, the person who is detained should beproduced before the Court and if the detention is found illegal theCourt will order that he be immediately released


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Mandamus: Mandamus is an order from the Supreme Court or High Court to a lower

court or tribunal or public authority to perform a public or statutory duty

Certiorari:

The writ of certiorari can be issued by the Supreme Court or any High Court

for quashing the order already passed by an inferior court, tribunal orquasi/semi judicial authority

Quo-Warranto

It is a writ issued with a view to restrain a person from holding a publicoffice which he is not entitled.

The writ of quo-warranto is often used to prevent illegal assumption of anypublic office or taking charge of any public office by any body

Prohibition

The Writ of prohibition is issued when a lower court or a body tries totransgress the limits or powers vested in it.


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The writ of prohibition is issued by any High Court or the SupremeCourt to any inferior court, or quasi judicial body prohibiting thelatter from continuing the proceedings in a particular case, where ithas no authority to deal with that case

Court of Record

Court of Record means a court whose acts and proceedings are kepton permanent record

Such a Court has also the power to punish for its contempt ordisrespect

The Supreme Court is a Court of Record.

Thus all its decisions and judgments are cited as precedents in allcourts of the country.

They have the force of law and are binding on all lower Courts,including the High Courts


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A High Court is also a court of record, like the Supreme Court.

Lower courts in a State are bound to follow the decisions of the

High Court which are cited as precedents.

A High Court has also the power to punish for its contempt or

disrespect.

Fundamental Rights Guaranteed under Constitution of India

People in democratic countries enjoy certain rights, which are

protected by judicial system of every country

Their violation, even by the State, is not allowed by the courts.

India respects the rights of the people, which are listed in Indian

Constitution, under the heading Fundamental Rights.


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The rights, which are enshrined in the Constitution under Part III

are called Fundamental Rights.

These rights ensure the fullest physical, mental and moral

development of every citizen.

They include those basic freedoms and conditions which alone can

make life worth living.

No democracy can function in the absence of basic rights such as

freedom of speech and expression.

Fundamental Rights provide standards of conduct, justice and fair

play and thus they serve as a check on the government


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Various social, religious, economic and political problems in Indiamake Fundamental Rights important.

In the Constitution, Fundamental Rights are enumerated in Part III

from Article 14 to 32

Fundamental rights are justiciable, which means that if any of theserights are violated by the government or anyone else, the individual

has the right to approach the Supreme Court or High Courts for the

protection of his/her Fundamental Rights

Indian Constitution does not permit the legislature and the executive tocurb these rights either by law or by an executive order.

The Supreme Court or the High Courts can set aside any law that is

found to be violating or abridging the Fundamental Rights


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The Constitution empowers the government to impose certainrestrictions on the enjoyment of fundamental rights in the interest of

public good

Initially the Right to Property was also enshrined in the Constitution of

India. However the Right to Property was removed from the list of

Fundamental Rights in the year 1976, since then, it has been made a

legal right.

The existing Fundamental Rights broadly fall under the followingtopics

Right to Equality

Right to Freedom, which also covers protection of life and personal

liberty


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Right against Exploitation

Right to Freedom of Religion

Cultural and Educational Rights, and

Right to Constitutional Remedies like writs

Directive Principles

Directive Principles of State Policy are in the form of

instructions/guidelines to the governments at the centre as well as

states.

Though these principles are non-justiciable, they are very important in

the governance of the country.

They were incorporated in Indian Constitution to provide economic

justice and to avoid concentration of wealth in the hands of a few

people.


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They are the directives to the future governments to incorporate

them in the decisions and policies to be formulated by them

Directive Principles of State Policy have been grouped into

four categories. These are:

a) the economic and social principles,

b) the Gandhian principles,

c) Principles and Policies relating to international peace and

security and

d) miscellaneous.


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Some of the Directive Principles covering economic and socialPrinciples are

The state shall endeavour to achieve Social and Economic welfare of

the people by:

a) providing adequate means of livelihood for both men and women.b) reorganising the economic system in a way to avoid concentration

of wealth in few hands.

c) securing equal pay for equal work for both men and women

d) making provisions for securing just and humane conditions of workand for maternity relief.

e) taking steps to secure the participation of workers in the

management of undertakings


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Some of the Directive Principles covering Gandhian Principles are

a) To organise village Panchayats.

b) To promote cottage industries in rural areas.

c) To prohibit intoxicating drinks and drugs that are injurious to

health.

Some of the Directive Principles covering International Peace And

Security :

India should render active cooperation for world peace and

security and for that the state shall endeavour to : -

a) promote international peace and security.

b) maintain just and honourable relations between nations.

c) foster respect for international laws and treaty obligations


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Miscellaneous

The Directive Principles in this category call upon the state

a) To secure for all Indians a uniform civil code.

b) To protect historical monuments.

c) To save environment from pollution and protect wild life

Fundamental Rights Vs Directive Principles

In spite of these differences, there is a close relationship between

the two Fundamental Rights and Directive Principles are complementary

and supplementary to each other

While the Fundamental Rights establish political democracy, the

Directive Principles establish economic and social democracy


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Law making Powers Provided by Indian Constitution

The Indian Constitution provides for distribution of legislative

powers between the Union (Parliament) and the States

(Legislatures)

As per the Indian Constitutiona) Parliament may make laws for the whole or any part of the

territory of India and

b) the legislature of a State may make laws for the whole or any

part of the State. The division of the powers of the Union and the State is based

on the distribution of the powers as stated by the three lists laid

down by the Indian Constitution


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These lists separate the powers vested on the State and the Union.

They are the Union List, the State List and the Concurrent List.

The Union List contains legislations, on which the Union enjoys

exclusive control.

Some of the most important topics under the Union List are

a) Defence

b) Banking

c) Telecommunicationsd) Insurance

e) Currency

f) Foreign Affairs


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The State List consists of subjects all of which are exclusive legislativepowers of the State.

Some of the important subjects enlisted in the State list are as follows:

a) Public Order and Police

b) State Taxes and Duties

c) Agriculture

d) Local governments

The Concurrent List: contains items, which are powers vested on the

State as well as the Union

Some of the subjects included in the Concurrent List are Trusts,

Contracts, Education etc

However, in case there is any repugnance, the Union Parliament will

prevail over the State legislature


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Prof. V.K. UnniIIM Calcutta

E-mail: [email protected]

1 ils fundamentals

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