Major Legal Systems in the World Today

Our Legal System

(N.R. Madhava Menon)

The legal system of a country is part of its social system and reflects the social,
political, and cultural characteristics of that society. It is, therefore, difficult to understand
the legal system outside the socio-cultural milieu in which it operates. It is true in the case of
India also even though the legal system we now have is largely the gift of the British
rulers. There is a view that the system is still alien to the majority of Indians whose legal
culture is more indigenous and whose contact with the formal legal system (the imported
British model) is marginal if not altogether non-existent. The language, technicality and
procedure of the inherited legal system are indeed factors which limit access to justice for the
illiterate, impoverished masses of our country. Nevertheless, the rights and benefits conferred
by the laws and the Constitution offer the opportunity for those very people to enjoy the fruits
of a welfare democracy which the people of India have given unto themselves on the 26th
January 1950. It is in this context familiarity with law and its processes becomes essential to
every Indian, rich or poor, man or woman, young or old.

Components of a Legal System

A legal system consists of certain basic principles and values (largely outlined by the
Constitution), a set of operational norms including rights and duties of citizens spelt out in
laws -Central, State and local, institutional structures for enforcement of the laws and a cadre
of legal personnel endowed with the responsibility of administering the system.

The Constitution: The Fundamental Law of the Land

The Constitution of a country is variously described depending upon the nature of the policy
and the aspirations of the people in a given society. It is generally a written document and
assumes the character of a federal (several independent units joined together) or unitary form
of government. India is declared to be a Socialist, Secular, Democratic Republic. It is said to
have a quasi-federal structure. The Constitution of India represents the collective will of 700
million Indians and, as such, the reservoir of enormous power. It describes the methods by
which this power conferred on the State is to be exercised for the benefit of the people. In
other words, it is a political document which distributes State power amongst different organs
(Central and State Governments, Legislative, Executive and Judicial wings of each
Government) and regulates its exercise in its incidence on the people. The form of
government is democratic and republican and the method is parliamentary through adult
franchise.
The goals are spelt out in Preamble itself which seeks to secure to all citizens:
“Justice, social, economic and political; Liberty of thought, expression, faith and worship;
Equality of status and of opportunity, and to promote among them all.”

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Major Legal Systems in the World Today

Fraternity assuring dignity of the individual and the “unity and integrity of Nation”.

To achieve this goal of dignity of the individual with justice, liberty and equality the
Constitution guarantees certain Fundamental Rights and provides for its enforcement through
the High Courts and the-Supreme Court. These basic Human Rights include:

(a) Equality before law,

(b) Equality of opportunity in matters of public employment.
(c) Prohibition of discrimination on grounds of religion, sex etc.
(d) Protection of life and personal liberty.
(e) Protection of right to freedom of speech, of assembly, of association, of movement and of
profession or occupation.
(f) Prohibition of forced labour,
(g) Right to freedom of religion,
(h) Protection of interest of minorities, and
(i) Right to constitutional remedies for enforcement of the above rights

Further, towards achieving the goals set out in the Preamble, the Constitution gives certain
Directives to State to follow in its policies and programmes. Principles of State Policy have
been recognized to be as sacrosanct as Fundamental Rights. In other words, they together
constitute a reference for State action in every sphere.

The Constitution envisages a unique place for the judiciary. Apart from overseeing the
exercise of State power by the Executive and the Legislatures of the State and the Central
Governments, the Supreme Court, and the High Courts are charged with the responsibility of
effectively protecting citizens’ rights through its writ jurisdiction. This offers a cheap and
expeditious remedy to the citizen to enforce the guaranteed rights. The Supreme Court
liberalized the rules so as to enable poor and illiterate citizens to have easy access to courts
for enforcing their basic rights.

The Rule of Law is supreme and the independence of judiciary is reality in our country.
This forms the bulwark of democracy and compels everyone to abide the law in his own be
understood and subscribed to by every Indian if we are to succeed in our declared goals.

Laws, Civil and Criminal

The laws of the country are too numerous, varied and complex; they are bound to be so
because law is as large as life itself which is increasingly becoming complex in, every sphere.
In a Welfare State like ours, laws are at the more so because they are expected to regulate a
variety of social and economic activities so as to subserve the common good. Inspired by the
Constitution, Parliament, the State legislatures and local councils make and unmake the laws

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Major Legal Systems in the World Today

day in and day out as occasion demands. Courts interpret them in specific fact situations and,
in the process, extend the scope and application of the laws. The common man may get lost in
the maze of legislations coming from all sides and contribute to its complexity by creating his
own laws through contracts and agreements with others he has to deal with.

On the basis of the remedies sought and the procedure followed, all laws can be grouped
into two categories, namely, Civil Laws and Criminal Laws. Broadly speaking, criminal law
is concerned with wrongs against the community as a whole, while civil law is related to the
rights duties and obligations of individual members of the community between themselves.

Civil Law includes a number of aspects which may be grouped under six or seven major
headings such as family law, the law of property, the law of tort, the law of contract, the law
relating to commerce and business, labour law, law of taxation etc. Family law, which in
India has its source both on statute and religion, comprises of the laws governing marriage,
divorce, maintenance, custody of children, adoption inheritance and succession. Though the
Constitution envisages a Uniform Civil Code, each religious group at present follows largely
its own norms in matrimonial and family relations. The law of property includes rights
of ownership, transfer, mortgages, trusts, intestacy and similar matters. The law of contracts,
is concerned with the enforcement of obligations arising from agreements and promises. This
includes transactions such as sale of goods, loans of money, partnerships, insurance,
guarantees, negotiable instruments, agency and the like. The law of torts deals with propriety
of actions and infraction of duties. Injuries to person or property caused by failure to take
reasonable care and caution leads to actionable wrongs under tort, which usually compensates
the victim of such injuries. Laws of commerce and business, which includes contract law,
relate to economic operations of individuals, partnerships and companies and governmental
regulation of them. Even law of taxation forms part of commercial laws. Labour law deals
with the relationship between employer and employees in the production and distribution of
wealth.

Criminal law is concerned with public wrongs or wrongs against the order and well
being of the society in general. The persons guilty of such wrongs are prosecuted and
punished by the State. These wrongs are specific and are defined in the Penal Code and a few
other special and local laws. One important aspect in this regard is that criminal laws insist
(apart from a few exceptional offences) on a particular intent or state of mind as a necessary
ingredient of a criminal offence. It also recognizes degrees of criminality and gradations of
crime. Ignorance of law is’ never taken as an excuse. Certain situations where guilty intention
could not have been entertained such as infancy, insanity mistake of fact etc., they are
recognized as defences to criminal responsibility. Offences are classified on the basis of the
objective or otherwise. Thus there are crimes against the human body, property, reputation of
the individual, against the State or against public rights.

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Major Legal Systems in the World Today

On a procedural basis they are classified as cognizable and non-cognizable (cognizable

are those in which the police can investigate or arrest persons without judicial warrant),
bailable and non-bailable, compoundable or otherwise.

Procedural Laws, Civil and Criminal

Most proceedings in the Supreme Court and the High Courts are governed by Rules
of Procedure made by the Courts themselves under powers given by statute. The Civil and
Criminal Procedure Codes and the Evidence Act do apply to judicial proceedings in these
courts as well. The writ procedure under Articles 32 and 226 is unique to these courts and is
intended for the quick enforcement of Fundamental Rights whenever they are threatened by
the State or its agencies. In such situations citizens can approach these courts even through a
letter sent by post as the Supreme Court has declared that procedure should not be allowed to
come in the way of dispensation of justice.

For the enforcement of civil rights and obligations a suit before a civil court is usually-
instituted. The procedures for trial and appeals including execution of decrees and orders are
laid down in the Code of ‘Civil Procedure. Variationism for purposes of jurisdiction is made
according to the Suits Valuation Act. The amount of court fees to be paid on plaints and
appeals is determined by the Court Fees Act. The Limitation/ Act prescribes the periods of
limitation with in which suits can be filed. The Evidence Act regulates the relevancy,
admissibility and probative value of evidence led in courts, civil and criminal.

The trial is in the nature of adversary proceedings where two parties oppose each other
in a suit or action between parties. The procedure commences with ‘pleadings’, which set out
the precise question in dispute or the cause of action. The opposite party (the defendant) may
file a written statement to admit or deny the allegations in the plaint. The pleadings may be
supplemented by the parties by making admissions of fact, answers and interrogatories, oral
statements before the court and by admissions and denials of documents filed by them.

The hearing of a suit commences with the serving of a copy of the plaint to the
defendant. A party can appear himself in court for the hearing or make appearance through an
agent or a pleader. According to the Advocates Act right to practise law before courts is given
to Advocates only. In the proceedings, parties have to summon their witnesses for deposing in
court. The trial involves recording of evidence of witnesses on a day-to-day basis at the
conclusion of which judgment is to be pronounced in open court.

Because civil proceedings are private matters, they can at any time be abandoned or
compromised and, in fact, in a number of cases they are settled before trial.

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Major Legal Systems in the World Today

Judgments are enforceable through the authority of the court. Refusal to obey a judgment
may lead to penal consequences, many decrees are open to appeal in higher courts within the
specified period.

Criminal proceedings are governed by the provisions of the Code of Criminal Procedure,
the purpose of which is to determine whether the accused is guilty of the offence charged and,
if so, to decide the punishment to be awarded therefore. It is designed to give every accused a
‘fair trial’ consistent with the constitutional commitment to individual liberty and freedom.

A criminal proceeding involves four major stages, namely, investigation, prosecution, trial
and disposition. Crimes being wrongs against society, the State undertakes the prosecution on
behalf of the victim. The police on receiving information of the commission of an offence
proceeds with the investigation. They are authorised to interrogate people, arrest the suspects
(with warrant from the Magistrate in non-cognizable cases), search places for recovery of
relevant materials, seize property connected with the crime and prepare a report on their
findings for necessary action by the prosecuting authorities. Whenever arrests are made they
are obliged to produce the arrested person before the nearest Magistrate within 24 hours. They
are not to use ‘third degree methods’ in interrogation and confession given to police is not
admissible as evidence in court. In all bailable cases they are bound to release the person on
bail. The arrested person has right to seek the aid of a lawyer of his choice and he cannot be
compelled to give evidence against himself.

Under our law every accused is presumed innocent and the prosecution (the State) has
to prove the guilt beyond a reasonable doubt. If there is any doubt in the evidence or the
prosecution, the benefit of doubt is given to the accused and he is acquitted. The defendant
has the right to cross-examine every prosecution witness while he cannot himself be
questioned unless he consents to be sworn as a witness in his own defence. In the case of
indigent persons there is provision for legal aid at the State expense.

If at the end of trial, the Judge finds him guilty, he has a right to be heard on the
determination of sentence. The emphasis in modern criminal justice being reformation and
rehabilitation, there is enough scope for a deserving convict to get correctional treatment as
part of sentence.

Apart form the civil and criminal proceedings prescribed in the respective codes, there
are a variety of adjudicative procedures followed in tribunals, quasi judicial administrative
agencies, arbitration councils, nyaya panchayats etc. where private disputes are processed and
settled through informal procedures. They are found to be cheap, expeditious and less
cumbersome in terms of adjudication.

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Major Legal Systems in the World Today

Legal Aid has now assumed an important place in judicial procedure in country. Right to
counsel by a lawyer of one’s choice is a constitutional right every citizen possesses. In the
case of poor person the Criminal Procedure Code provides for the appointment of counsel at
State expense to defend the indigent accused in all major criminal cases. In civil proceedings,
a poor person can declare himself to be a ‘pauper’ in which case he is exempted from co fees
and a variety of related court expenses. Legal Aid Schemes set up in State also provide such
persons with the services of lawyers to conduct litigation on their behalf.

Courts of Law

Courts are institutions wherein disputes are adjudicated and justice, administered. They
are created by Statutes and enjoy such powers and jurisdiction, which the Statutes confer. The
Constitution itself provides for the Supreme Court and the High Court in each State at the
apex of the judicial system and confers original and appellate jurisdiction on them primarily
to resolve disputes between Union and the State, State and State, State and the citizen and in
limited cases appeals arising out of private disputes involving substantial questions of law.
This higher judiciary is named as the Union Judiciary and appointments to it are made by the
President of the Union on the advice of the Chief Justice. Citizens can directly approach the
High Courts or the Supreme Court to seek redress for the violation of Fundamental Rights.
These courts have a supervisory function over the subordinate courts (State Judiciary) which
are set up by each State according to its requirements under the Civil Procedure Code,
Criminal Procedure Code or other State laws. The High Courts and Supreme Court enjoy civil
and criminal jurisdiction apart from the writ jurisdiction.

The State judiciary under the High Court is organised in a hierarchy on the civil and
criminal sides based on their jurisdiction, territorial or monetary. On the criminal side, the
Criminal Procedure Code provides for the Magistrates Court (First or second Class depending
on the extent of powers for punishment) and above them the Sessions. Courts, usually one in
each District. On the civil side the Civil Procedure Code provides for the Munsiffs’ Court
(with limited pecuniary jurisdiction), the Sub-Divisional Court and the District Court
each with varying pecuniary and territorial jurisdiction. There can be Special Courts set up for
specific purposes and also Administrative and Revenue Tribunals to adjudicate upon specific
categories of disputes. Thus there are Motor Vehicles Compensation Tribunals, Sales Tax
Tribunals etc. all of which are judicial bodies adjudicating disputes in the areas assigned to
them, Appeals from these courts and tribunals usually lie to the High Courts and, in
exceptional cases, a second appeal to the Supreme Court.

The Personnel of the Law

Administration of justice requires the co-operation not only of the parties and the judges
but also of officers of court who include the Advocates, the court staff and the para-legal
personnel who assist the lawyers and judges.

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Major Legal Systems in the World Today

Judges

All judicial officers from the Supreme Court Judge to the Munsiff in a small taluka are
independent of both the legislature and the executive. They are free to administer-law without
fear or favour and they cannot be interfered with by any one including the top functionary
of the Government. They have the power to punish those who commit contempt of court or
disobey their legitimate orders.

The President, acting on the advice of the Cabinet and the Chief Justice of India, appoints
the Judges of the Supreme Court and the High Court. The Governor of the State appoints the
Judicial Officers of the State similarly on the advice of the State High Court/Government.
Their salaries and service conditions are determined by law and cannot be changed to their
disadvantage. Their removal from service requires a special procedure and the control of their
judicial functions vest on the higher judiciary.

Lawyers and the Bar

Lawyers are the key functionaries assisting the judges in the administration of justice.
They are officers of court and are constituted into an independent profession under an Act
of Parliament. (The Advocates Act,1961). No others may practice before the courts. Without
the expert assistance of lawyers on either side of a dispute, judges will find it difficult to find
the truth on disputed facts in issue and interpret the law applicable to varied situations. That
is why the legal profession is often referred to as a noble and a learned profession.

There are at present approximately 2,30,000 Advocates practising in the various courts in
the country. For organizational purposes they have formed themselves into bar associations.
They are enrolled into the profession by the Bar Council created by Parliament under the-
Advocates Act. The Bar Councils at the State level and the Central level consist of elected
members of the profession who undertake the responsibility of not only admitting new
entrants, but also improving the quality of legal services particularly through the exercise of
disciplinary powers over erring members of the profession. Legal Services to the poor is
one of the social obligation of every lawyer required under the Bar Council rules of
professional conduct.