1 ils fundamentals
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Prof. V.K. Unni
IIM Calcutta
E-mail: unniv@iimcal.ac.in
Fundamentals of Indian Legal System
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Fundamentals of Indian Legal System
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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Fundamentals of Indian Legal System
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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Fundamentals of Indian Legal System
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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Fundamentals of Indian Legal System
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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Fundamentals of Indian Legal System
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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Fundamentals of Indian Legal System
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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Fundamentals of Indian Legal System
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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Fundamentals of Indian Legal System
(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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Fundamentals of Indian Legal System
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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Fundamentals of Indian Legal System
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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Fundamentals of Indian Legal System
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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Fundamentals of Indian Legal System
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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Fundamentals of Indian Legal System
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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Fundamentals of Indian Legal System
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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Fundamentals of Indian Legal System
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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Fundamentals of Indian Legal System
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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Fundamentals of Indian Legal System
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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Fundamentals of Indian Legal System
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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Fundamentals of Indian Legal System
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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Fundamentals of Indian Legal System
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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Fundamentals of Indian Legal System
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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Fundamentals of Indian Legal System
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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Fundamentals of Indian Legal System
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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Fundamentals of Indian Legal System
Prof. V.K. UnniIIM Calcutta
E-mail: unniv@iimcal.ac.in
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