Introductory Talk on know your Legal System for law students of

Vivekananda Law College

The Legal System of a country is part of its Social System and reflects the
Social, Political, Economic and Cultural Characteristics of that society.

It is difficult to understand the legal system outside the socio-cultural

mileu in which it operates.

In case of India also even through the Legal System we now have is
largely the gift of the British Rules.

A view is there 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 (imported from Britishers) is marginal if not altogether non-existence.

The language, technicality and the procedure inherited legal system are
indeed factors which limit the accepts to Justice for the illiterate, impoverished
masses of our country.

Nevertheless, the rights and benefits conferred by the laws and the Indian
constitution offer the opportunity for those very people to enjoy the fruits of a
welfare democracy which the people of India have given to themselves on 26 th
January 1950.

It is in this context familiarity with the 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 contained in

the Constitution, a set of operational norms including rights and duties of
citizens spelt out in the laws- Central, State and Local, institutional Structures
for sufficient 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 polity and the aspirations of the people in a given society.

A constitution is generally a written document and assures the character of

federal nature. India is declared to be a socialist, secular, democratic, republic.
 The Constitution of India represents the collective will of 130 million
Indian and, as such the reservoir of enormous power.

The Constitution describes the method by which this power conferred on

the state is to be exercised for the benefit of the people.

To be simple, it is a Political document which distributes states power

among different organs of the Government and regulates it 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 the preamble to the constitution

“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 said goal, dignity of the individual with Justice,
liberty and equality the constitution guarantees certain fundamental rights and
provides for its easy enforcement through the High Courts and the Supreme
Court.

The basic Human Rights include,

a. Equality before law.

b. Equal opportunity in matters of public employment.
c. Prohibition of discrimination on the ground of religion, caste, colour
and sex etc.
d. Protection of life and Personal liberty.
e. Protection to freedom of speech and expression, 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.
i. Right to Constitutional Remedies for the enforcement of the above
rights.
 Further, towards achieving the goals set out in the preamble the
constitution gives certain directives to the state to follow in its policies and
programmes. These Principles of state policy have been recognised to be as
sacrosanct as Fundamental Rights.

The Constitution envisages a unique place for the Judiciary in the

country.
Apart from overseeing the exercise of state power by the executive and
the central Governments the Supreme Court and the High Courts are charged
with the responsibility of effectively protecting the citizens rights through writ
Jurisdiction.
This protection offers a cheap and expeditious remedy to the citizens to
enforce Fundamental Rights.
The Supreme Court recently liberalised the rules as to enable approach
the court in the form of public interest litigation. To be more clear the rule of
law is supreme and the independence of the Judiciary is a living reality in India.
So, these form the bulwark of democracy and compels everyone to abide
by the law.
Constitutional Government and the principles involved in it ought to be
understood and subscribed 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 all the more so because they are
expected to regulate a verity of social and Economic activities so as to sub serve
the common good.
Inspired by the Constitution Parliament, State legislatures and local
authorities make and unmake the laws day in and day out as the occasion
demands.
Courts of law interpret them in specific fact, situations and in the process
extend the scope and application of the laws.
A common may get lost in the maze of legislations coming from all the
sides and contribute to its complexity by creating his own laws through
contracts and agreements with others, to whom he is going to deal with.
 On the basis of the remedies sought and the procedure to be followed, all
laws can be grouped into two categories. i.e. Civil Law and Criminal Law.
Broadly speaking Criminal Laws is concerned with wrongs against the
community as a whole, Civil Law is related to the rights, duties and obligations
of individual members of the community between themselves.
Civil Law: It includes a number of aspects which may be grouped under six
major headings, such as, Family Law, Law of Contract, Law relating to
Consumer and Business, Labour Law, Law of Taxation etc. Wherein in India it
has its source from statute and Religion.
Family Law, Comprises of laws governing marriage, Divorce,
Maintenance, Custody of Children adoption, inheritance and succession.
Though the Constitutional Law envisages a uniform Civil Code, each
religious group at present follow largely its own norms in matrimonial and
family relations.
The law of property includes rights of ownership, transfer, mortgages,
trust, intestacy and similar matters.
The law of contract is concerned with the enforcement of obligations
arising from agreements and promises.
This includes transactions such as sale of Goods, Loans of money,
Partnership, insurance guarantees, negotiable instruments, agency and the like.
The law of Torts deals with the property of actions and infraction of
duties.
Injuries to persons 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.
Law of commerce and business, which includes contract law, relate to
economic operations of individuals partnerships and companies and
governmental regulations.
Law of Taxation forms part of commercial laws,
Labour Law deals with the relationship between the employer and
Employees in their production and distribution of wealth.

Criminal Law: Criminal Law is concerned with public wrongs or wrongs

against the order and well being of the society in general.
 The persons guilty of wrongs are prosecuted and punished by the state.
The wrongs are specific and are defined in Indian Penal Code and few other
wrongs are grounded by local and special laws.
One important aspects in this regard is that criminal laws insist (apart
from Exceptional offences) on a particular intent or state of mind as a necessary
ingrident of a criminal offence. It also recognises the degree of criminality and
gradations crime.
Ignorance of law is never taken as a defence.
In certain situations were quietly intention could not have been
entertained such as infancy, insanity, mistake of fact etc. They are recognised as
defences to Criminal Responsibilities offences are classified on the basis of
objective.
Thus, there are crimes against the human body, property, reputations of
the Individual against public rights.
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 of the proceedings in the Supreme Court and High Courts are
Governed by the Rules of procedure made by the courts themselves under the
powers given by the statute.
The Civil and Criminal Procedure Codes and the Evidence Act do apply
to Judicial proceedings in these courts.
The writ procedure under Article 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 situations of violation of Fundamental writs courts can be approached
through a post card as the principle of Locus –Standi which has been liberalised.
(Sunil Batra v/s Delhi Administration)
For the enforcement of Civil Rights and obligations as a suit before a
Civil Court is usually instituted.
The procedure for trials and appeals including execution of decrees and
orders are laid down in the Civil Procedure Code.
Valuation of the suits for the purpose 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 period of limitation within 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 adverse 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 may file a written statement 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 hierarchy of suit commences with the servicing 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 pleader.
According to the Advocates let right to practice law before courts is
given to advocates only.
The trial involves recording of evidence of witnesses on a day to day
basis at the conclusion of which Judgement is to be pronounced in open court.
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.
Judgements are enforceable through the authority of court. Refusal to
obey Judgement may lead to Penal consequences.
May decrees are open to appeal in higher courts within the specified
period.

Procedural Laws, Civil and Criminal

Criminal Proceedings: Criminal Proceedings are governed by the provisions

of the codes 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 thereof.
 It is designed to give every accused a ‘Fair consistent’ with the
Constitutional Committment to individual liberty and freedom.
Criminal proceedings involve 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 the information of the commissions of an offence
proceeds with the investigation.
Police 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.
Police are not entitled to use ‘third degree methods’ in interrogation and
confusion given to the police are not admissible in a court of law.
In all bailable offences they are bound to release the persons on bail.
The arrested person has the 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
(state) has to prove the guilt beyond reasonable doubt.
If there is any doubt in the evidence of the prosecution, the benefit of
doubt goes to the accused and he is acquitted.
The defendant (his lawyer) has the right to cross-examine every
prosecution witmess while he cannot himself be questioned unless to consents
to be sworn a witness in this own defence.
In the case of indigent persons there is provision for legal aid at state
expense.
If at the end of the trial, the Judge finds him quality he has a right to be
heard on the determination of sentence.
The emphasis is modern Criminal Justice being reformative and
rehabilitative, there is enough scope for deserving convict to get correctional
treatment as a 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 agencies, Nyaya Panchayats etc. Wherever private
disputes are processed and settled through informal procedures, because they
are found to be cheap, expeditious and less cumbersome in terms of
adjudication.
Legal Aid has now assumed an important place in Judicial procedure in
India.
Right to counsel by a lawyer of his own choice is a Constitutional Right
of every citizen available not only during trial but also in pre trial processes.
In the case of poor persons 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 court fees and a variety of related expenses
in prosecuting litigations.
Legal Aid schemes are setup in all states which provides persons with the
services of lawyers to conduct litigation on their behalf.

Judges:
All Judicial Officers right from Supreme Court to Subordinate Courts are
independent of both the legislature and executive. They are free to administer
law without fear or favour and they cannot be interfered by anyone including
the top functionary of the Government.