Indian Legal System – An Introduction

Presentation by,

Shaik Mustaqueem
Al Ameen College of Law
(Bangalore)

In case of any Suggestions/Clarification,

Please mail at:- shaikmustaqueem2002@gmail.com
or
+91- 8762350613 (WhatsApp)
 Indian Legal System – An Introduction

Hello, Everyone!
Asallamu Walikum,

My name is Shaik Mustaqueem and I'm from Bangalore. I'm currently pursuing my
Law at Al Ameen College of Law, 5 years B.A.LLB, and I hope to become successful
Lawyer one day.

I'm really passionate about Law and Legal System in India, and I'm always looking for
new ways to learn and improve my Knowledge and Skills. I also seek to help the low
class society in future for their welfare and growth.

I'm excited to start my career and can't wait to see what the future holds for me. I'm
confident that I have what it takes to be a lawyer, and I'm looking forward to making a
difference in the world.

Thank you for taking the time to get to know me. Now lets get started towards our
interesting topic for the day!
 Table of Content Slide/Page No.
Self Introduction 2
Introduction 4
Indian Legal System 5
History of Legal System In Ancient India 6-7
Hierarchy of Courts in Ancient India 8-10
History of Legal System in Medieval India 11-13
Legal System During British Era 14-15
Legal System in Present India 16
Classification of Law 17
Judiciary in Post Independent India 18
Hierarchy of Courts 19
Hierarchy of Courts in Present India 20
Supreme Court in Independent India 21-23
High Courts in Independent India 24-25
Subordinate Courts in Independent India 26-27
The Litigation Process in Present India 28-29
ADR in India 30-33
 Introduction
■ India has the oldest judiciary in the world. No other judicial system has a
more ancient or exalted pedigree.

■ The present judicial system of India was not a sudden creation. It has been
evolved as the result of slow and gradual process and bears the imprint of
the different period of Indian history.

■ The judicial system deals with the administration of the laws through the
agency of the courts. The system provides the machinery for the resolving of
the disputes on account of which the aggrieved party approaches the court.
 Indian Legal System

■ Indian law refers to the system of law which operates in India. It is

largely based on English common law. Various Acts introduced by
the British are still in effect in modified form today. Much of
contemporary Indian law shows substantial European and American
influence.
What is Law?

 Law is a set of rules recognised by the state in the administration of

justice, which governs the government, the relation between the
government and its citizen and also the relation between the citizens.
 History of Legal System In Ancient India

 Manu’s Manusmriti, Brihaspati’s Dharma Shastra's, Narada the Smritis, and Kautilya the
Arthashastra were considered as the Ancient texts of law.

 Civil judicial proceeding in ancient India

 As at present commenced ordinarily with the filing of a plaint or what was known as Purva
Paksha before a competent authority.

 Written statements known as Uttara Paksha were required to be filed by the defendants and
the rules enjoined that they must not be vague and must meet all the points of the plaint.

 Normally, parties were required to produce their witnesses.

 Different modes of proof for substantiating allegations were prescribed.

 On the conclusion of the trial, judgment known as Nirnaya was pronounced and the
successful party became entitled to Jayapatra or a document of success, Execution of the
decrees could entail imprisonment, sale, fine and demand for additional security.
 History of Legal system In Ancient India
(cont.…)

 Criminal judicial proceeding in ancient India

■ In criminal law there was an elaborate classification of offences. Apart from offences like
rape, dacoity and the like, there were other offence like not running to the rescue of
another person in distress.

■ Punishment was prescribed for causing damage to trees in city parks, to trees providing
shades, to trees bearing flowers and fruits and to trees in holy places.

■ It was an offence for a judge to give a wrong decision out of corrupt motive.

■ Perjury by a witness attracted severe penalty.

■ There were six types of punishment, namely, fine, reprimand, torture, imprisonment,
death and banishment.

■ Theft was classified into three kinds according to the value of the thing stolen.
 Hierarchy of Courts in Ancient India

 Manu prescribed the following oath for parties and witnesses: “Let the Judge
cause a Brahmin to swear by his truth or sat, a Kshatriya by his chariot or the
animal he rides or by his weapons, a Vaishya by his cattle, grain and gold, and a
Shudra by imprecating on his head the guilt of all grievous offences”.

 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 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. The decision of each higher Court superseded that of the court below.
 Hierarchy of Courts (Cont….)

 A very strict code of judicial conduct was prescribed for the king. He was required to decide
cases in open trial and in the court-room, and his dress and demeanour were to be such as not
to overawe the litigants.

 He was required to take the oath of impartiality, and decide cases without bias or attachment.

 According to Katyayana: "The king should enter the court-room modestly dressed, take his
seat facing east, and with an attentive mind hear the suits of his litigants. He should act under
the guidance of his Chief Justice (Praadvivaka), judges, ministers and the Brahmana members
of his council. A king who dispenses justice in this manner and according to law resides in
heaven".

 According to Brihaspati: “A judge should decide cases without any consideration of personal
gain or any kind of personal bias; and his decision should be in accordance with the procedure
prescribed by the texts. A judge who performs his judicial duties in this manner achieves the
same spiritual merit as a person performing a Yajna”.
 Hierarchy of Courts (Cont….)

 The strictest precautions were taken to ensure the impartiality of judges. A trial
had to be in open court and judges were forbidden to talk to the parties privately while
the suit was pending because it was recognised that a private hearing may lead to
partiality

 Another safeguard of judicial integrity was that suits could not be heard by a single
judge, even if he was the king. Our ancients realized that when two minds confer, there
is less chance of corruption or error, and they provided that the King must sit with his
counsellors when deciding cases, and judges must sit in benches of uneven numbers.

 Corruption was regarded as a heinous offence and all the authorities are unanimous in
prescribing the severest punishment on a dishonest judge. Brihaspati says: “A judge
should be banished from the realm if he takes bribes and thereby perpetrates injustice
and betrays the confidence reposed in him by a trusting public”.
 History of Legal System in Medieval India
 It is the period of Islam Kings and Sultans. The sovereignty in Muslim state essentially
belonged to the god. The administration of justice was regarded by the Muslim kings
as a religious duty. They considered themselves as God’s humble servants.

 Shershah considered justice as the most excellent of religious rites.

 Jahangir regarded daily administration of justice in public as one of his most sacred
duties.

 Shahjahan once remarked as justice was the mainstay of his government.

 Quran was considered as the main text of law.

 Quazis were appointed to assist the king in administration of justice and they held the
office till the pleasure of the king.
 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".

 Individual Sultans had very high ideals of justice. 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.
 Muslim law in India was incapable of growth and change, except so far as it reflected
changes of juristic thought in Arabia or Egypt because 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. Hence, it
became necessary for Indian Qazis to have at their elbow a digest of Islamic law and
precedent compiled from the accepted Arabic writer.

 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.

 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.
 Legal System During British Era

 The system of administration of justice and laws we have today are the product of British rule
in India.

 Not less than 4 Law commissions and committees were appointed by the British rulers during
1834-1947 to give shape to the system.

 The common law system means the system of law based on recorded judicial precedents came
in to India with the British East India Company.

 The company was granted charter by King George I in 1726 to establish Mayor’s Court in
Madras, Bombay, and Calcutta.

 Following the first war of Independence in 1857 the control of company territories in India
passed to the British crown.

 The next big shift in the Indian legal system was the establishment of Supreme Courts
replacing the existing Mayor’s courts.
 Legal System During British Era

 The doors of newly created SC were closed to the Indian practitioners, right of audience was also
limited to the members of English, Irish and Scottish professionals. Later the Legal Practitioners Act,
1846 which opened up the profession regardless of nationality or religion to all.

 These courts were later converted in to the First High Courts through letters of patent authorised by
the Indian High Courts Act passed by British parliament in 1862.

 During British Raj the Privy Council acted as the highest court of appeal. Cases before the council
were adjudicated by the house of lords.

 Coding of law also began with forming of the first law commission. The IPC was drafted, enacted and
brought in to force in 1862.

 The CrPC also was drafted by the same commission.

 Later in 1937 the Federal court was established at Delhi under the provisions of Government of
India Act 1935 with original, appellate and advisory jurisdiction. The court was in function till 1950.

 The right of appeal from the decisions of the federal court was granted to Privy Council in London.
 Legal System in Present India

 There are certain Sources of law from which the rules of conduct came in to existence
and derived the legal and binding force. They are namely;

1. Precedents: These are the judgements passed by some of the learned jurists.

2. Customs: It is a rule or a law which is not written, but is established by long use of a
particular class, family, section, district or tribe and obtained the force of law.

3. Legislations: It is the direct or primary source of law framed by the parliament or

state legislatures.

4. International agreements and treaties: Although the Indian judiciary does not have
the power to make laws, it interprets the obligation of India in international law by
adjudicating domestic cases concerning issues of international law.
 Classification of Law

LAW

International Law Municipal Law

Public Law Private Law

Public International Law Private International Law

Law of Tort
Constitutional Law

Law of Contract
Administrative Law

Law of Property
Criminal Law

Family Laws
 Judiciary in Post Independent India
■ A State consists of three organs, the legislature, the executive and the judiciary. The
courts have by and large enjoyed high prestige amongst and commanded respect of the
people. This is so because of the moral authority of the courts and the confidence the
people have in the role of the courts to do justice between the rich and the poor, the
mighty and the weak, the state and the citizen, without fear or favour.

■ Judiciary is a part of the democratic process. Judiciary not only administers justice, it
protects the rights of the citizens and it acts as the interpreter and guardian of the
constitution. The judiciary enjoys the power of judicial review by virtue of which the
judiciary decides the constitutional validity of the laws enacted or of the decree issued. It
can invalidate laws and decrees which are not constitutional. The justice system is the
mechanism that upholds the rule of law. Our courts provide a forum to resolve disputes
and to test and enforce laws in a fair and rational manner. The circumstances of any
particular case may result in a modification or refinement of the law and its application.
Hierarchy of Courts
SC

HC

Subordinate
Court

Criminal Revenue
Civil Court
Court Court

Court of
Sessions Board of
District
Court revenue
Magistrate

Sub Judge First Class

Collector
Family Magistrate

Munsif Second Class

Tahsildar
Magistrate

Small Third Class Asst.

Causes Court Magistrate Tahsildar
 Hierarchy of Courts in Present India
 The judicial system provided by the Constitution of India is comprised the three type of courts. At the top, it
is Supreme Court, at middle the High Courts and at bottom the subordinate Courts in addition to the
Constitution, there are other laws and rules which direct the composition, power and jurisdiction of these
courts.

1. Supreme Court of India: It is the highest court of the land seated at New Delhi, comprised of one Chief
Justice twenty other judges ( at the time of constitution). Now there are 29 sitting judges against the
maximum possible number of 31 (A. 124(1)).

 The CJI is appointed by the President of India. Every other judge of the Supreme Court shall be appointed
by the President of India after consulting the CJI (A. 124(2)).

 According to A. 124(3) Qualification to be appointed as judge is that he should be citizen of India, should
have been Judge of High Court for at least five years or an advocate of High court for at least 10 years or is
in the opinion of the President a distinguished jurist.

 Tenure: As per A. 124(4), the Judge of Supreme Court holds office up to the age of sixty five years unless
he resigns earlier or removed on the ground of proved misbehaviour and incapacity by impeachment.
 Supreme Court in Independent India

■ Jurisdiction of SC: The jurisdiction of Supreme Court is classified as under;

1. Original Jurisdiction
2. Appellate Jurisdiction
3. Advisory Jurisdiction

4. Original Jurisdiction: According to Article 131the Supreme Court has exclusive

original jurisdiction to hear dispute between;

 The Centre and the States or the States interest

 Between states

 One or more states and centre

 Issues relating to enforcement of Fundamental Rights( Article 32).

 Supreme Court in Independent India

2. Appellate Jurisdiction:

 Article.132: It can hear appeal against the decision every High Court on the granting
of certificate by the High Court if substantial question as to the interpretation of the
Constitution is involved

 Article.133: In a civil case a substantial question of law of general importance involved

and the High Court thinks that the question needs the decision of the Supreme Court
or in a criminal case is fit one to be hear by the Supreme Court.

 Article.134: The Supreme Court can hear the criminal appeal even without the
certificate of High Court against a decision of a High Court in which death sentence
has been pronounced after reversing the acquittal order passed by the lower Court or
after withdrawal of case from the lower court.
 Supreme Court in Independent India
 Article.136: It also enjoy extra ordinary jurisdiction to allow an appeal in any matter against
the decision of any court or tribunal by way of Special Leave Petition except the tribunals
concerning Armed Forces.

 The Supreme Court can transfer or withdraw the cases from any High Court. It can review any
judgment pronounced or order made by it. The law declared by the Supreme Court is binding on
all courts within India.

 It can make its own rule of government with the approval of the President.

 It is a Court of record and has power to punish in contempt of it.

3. Advisory Jurisdiction (Article 143)

 The Court can report to the President its opinion about a question of public importance referred
to it by the President.

 Beruberi Case
 High Courts in Independent India
 Chapter V of part VI of the Constitution contains the provisions regarding the High Court.

 There is to be High Court for each state or one High Court for more than one State. There are the judicial
Commissioner Courts in the Union Territories of Manipur, Goa and Tripura. The High Court can be
established for Union Territories.

 Appointment: The Judges of a High Court are appointed by the President after consulting the Chief Justice
of India, the Governor of the concerned and the Chief Justice of the concerned High Court.

 Number of Judges: The number of judges of a High Court is fixed by the President from time to time. In this
way, flexibility is maintained with respect to the number of Judges in a High Court which can be settled by
the Central Executive keeping in view the quantum of work before the Court.

 Qualifications: A person to be eligible for appointment as a High Court Judge must be a citizen of India and
must either have held a judicial office in India for 10 years or been an Advocate of a High Court for at least
ten years.

 Tenure : The Judges have a fixed tenure and they retire at the age of sixty two years. They cannot be
removed earlier except when the two Houses of Parliament pass an address on the ground of proved
misbehaviour or incapacity by a majority of not less than two thirds of the members present and voting.
 High Courts in Independent India

 Court of Record: Each High Court is to be a Court of Record having the powers to
punish for contempt of itself (A. 215).

 Writ Jurisdiction: Every High Court has power to issue various writs under Article
226 of the Indian Constitution

 Superintendence: Article 227 which authorize every High Court to have

superintendence over all Courts and Tribunals within its territorial jurisdiction. The
High Courts thus occupy high position of respect, dignity and authority in the Judicial
System of India.

 Article 226-A empowers the HC’s to check the validity of central and state laws.

 Appellate Jurisdiction: It is the highest court of appeal in the state.

 Power to punish for contempt.

 Subordinate Courts in Independent India
 Chapter VI under Part VI of the Constitution provides the provisions regarding
subordinate courts.

 Below the High Court there is the Court of District Judge which is top court among
subordinate courts.

 The appointment, posting and promotion of District Judge are made by the Governor of
the concerned State in consultation with the concerned High Court.

 As regards eligibility for the post of the District Judge, a person not already in the
service of the Union or of the State shall only be eligible to be appointed as District
Judge if he has been for not less than seven years an Advocate or a Pleader and is
recommended by the concerned High Court.
 Subordinate Courts in Independent India

 Appointments of a person other than District Judges to the judicial service of the State
shall be made by the Governor of the State in accordance with rules made by him in
that behalf after consultation with concerned State Public Service Commission and with
concerned High Court.

 As regards control over subordinate courts, including the matters of posting ,

promotion, leave etc., the concerned High court is vested with the power to have control
over subordinate courts but the High court is to exercise the control in accordance with
the conditions of service under the law applicable in relation to subordinate courts.

 The Governor may by public notification direct the application of the provisions of
Chapter VI of the Constitution and the rules made there under on any class or classes
of magistrates in the concerned State subject to any exception or modification.
 The Litigation Process in Present India

 Generally, there are two types of legal cases- civil and criminal.

1. Civil litigation: Civil litigation is a lawsuit whereby a party seeks damages against
another party. The damages can come in the form of money or the modification of
some type of conduct.

 The first stage of civil litigation is the pleading stage. The pleading stage simply refers to
the filing of the complaint against the party that is the defendant. The next stage of civil
litigation is discovery.

 Discovery is simply the process of learning what evidence each side has regarding the
dispute.

 Once discovery comes to a close, the defendant will often file something known as a
motion for summary judgment.
 The Litigation Process in Present India

2. Criminal litigation: The criminal justice process typically begins when a police officer
places a person under arrest. After a criminal suspect is arrested, the next steps in the
case are the processing of the person into police custody and a determination of his/her
eligibility for release from custody in exchange for the posting of a set amount of money
(bail).

 After a criminal defendant is formally charged with a crime, the case proceeds to the
trial phase.

 After a defendant is convicted or pleads guilty, a judge will decide on the appropriate
punishment/sentence during the sentencing phase of a criminal case.

 Sentencing for criminal offenses can range from probation and community service to
prison and even the death penalty.
 ADR in India

3. Alternative Dispute resolution (ADR): Most matters settle before reaching the trial
stage.

 Settlement can be discussed by any party at any time during litigation and is often a
cost-effective alternative to trial. Usually the court does not require the parties to
discuss or attempt settlement, but most courts have procedures by which a party can
request the court's assistance in settlement.

 ADR system avoids the rigidity and inflexibility of traditional and orthodox procedures.

 It is not to supplement traditional method of resolving disputes through litigation. In

fact, it offers only alternative option to litigation.

 The commonly practiced alternative dispute resolution mechanisms are namely;

Arbitration, Mediation, Conciliation, Negotiation and Lok Adalat.
 ADR in India
1. Arbitration: Arbitration is an adversarial proceeding in which the parties select a neutral third
party, called an arbitrator, to resolve their dispute. The process is abbreviated and less formal than
trial. Arbitration often arises from private agreement, but many courts also require the parties to
smaller disputes to explore arbitration as an option to trial. Parties who agree to settle their dispute
using binding arbitration usually cannot appeal the arbitrator's ruling to the court.

2. Mediation: Mediation also involves a neutral third party, but it is the mediator's job to assist the
parties settlement efforts. The parties select the mediator, who meets privately with each party to
discuss the strengths and weaknesses of each side's case. The mediator helps the parties identify
the risks of the case and encourages them to consider how those risks can affect their goals.

3. Conciliation: Conciliation is an alternative dispute resolution (ADR) process whereby the parties to a
dispute including future interest, disputes agree to utilize the services of a conciliator, who then
meets with the parties separately in an attempt to resolve their differences. They do this by lowering
tensions, improving communications, interpreting issues, providing technical assistance, exploring
potential solutions and bringing about a negotiated settlement.
 ADR in India

4. Negotiation: Negotiation is a dialogue between two or more people or parties, intended to reach
an understanding, resolve point of difference, or gain advantage in outcome of dialogue, to produce
an agreement upon courses of action, to bargain for individual or collective advantage, to craft
outcomes to satisfy various interests of two people/parties involved in negotiation process.

 Negotiation is a process where each party involved in negotiating tries to gain an advantage for
themselves by the end of the process. Negotiation is intended to aim at compromise. Negotiation
occurs in business, non-profit organizations, and government branches, legal proceedings,
among nations and in personal situations such as marriage, divorce, parenting, and everyday life

5. Lok Adalat In the recent times, Lok Adalats had grown well as an alternative dispute
resolution mechanism and the system became very popular too. The very expression “Lok
Adalat” means “People’s Court”. The system is more based on morality and honesty, the
real pillars of our traditional society
 ADR in India
■ Lok Adalat is not a new concept in our country and the evolution of this system can be traced back even to
Vedic times. We find a reference to this system in the ancient classics of Koutilya, Gautama, Brihaspati
and Yagnavalkya. These were known as Panchayats, Gram Sabhas, Peoples Courts or Popular Courts,
Kula Courts or Sreni Courts. Whatever may be the nomenclature of the system, the concept had been and
continues to be substantially one and the same. Though during the Muslim regime the traditional system
of Lok Adalats were slightly disturbed there was no total destruction of the system. However, the advent of
the British rule had totally replaced this system with the present legal system. Under the Lok Adalat
programme, the first Lok Adalat was held on 14-3-1982 at Junagadh of Gujarat State.

■ The Lok Adalat is based on the principles of honesty, fair play and moral character as embodied in Indian
culture and civilization. It endeavours to restore the confidence of a common man in the judicial system
and contemplates the justice where strict provisions of Evidence Act, Limitation Act, Criminal Procedure
Code an Civil Procedure Code are not rigidly followed and are relaxed whenever necessary in the ends of
justice. It hears and settles the disputes in the language of the people in the public presence. Moreover, it
earnestly endeavours to invent new prospects for resolution of disputes, which is not possible under the
conventional justice delivery system.
 THANK YOU
BIBILOGRAPHY
Websites Visited:
 www.indlii.org
 www.judis.nic.in
 www.indiacode.nic.in
 www.shodganga.com
 www.legalbasket.com
 www.manupatrafast.com
 www.supremecourtofindia.nic.in

Books Referred:
 Code of Civil Procedure by Jatin Kumar Das
 Code of Civil Procedure by T.P. Tripathi
 Transfer of Property Bare Act by R.K. Sinha
 Law of Torts by Dr. R.K. Bangia

In case of any Suggestions/Clarification,

Please mail at: shaikmustaqueem2002@gmail.com
or
+91 8762350613 (WhatsApp)