Name-Sasmit Suhas Patil

Div-A

Prn-1182200068

Subject-introduction to legal systm

Prof-Aayush Mishra sir

Law-

Salmond defined law as, “the law may be defined as body of principles recognised
and applied by the state in the administration of justice.” Though Salmond did not
define justice yet his definition can be considered as the most workable definition.

Sources of law
1. Legislative.
2. Precedents.
3. Customs.
Sources of law means the origin from which rules of human conduct come into
existence and derive legal force or binding characters. It also refers to the sovereign
or the state from which the law derives its force or validity. Several factors of law
have contributed to the development of law. These factors are regarded as the
sources of law.

1- LEGISLATIVE
In modern times legislation is the most important source of law. The term legislation
means any from law making Legislation is a source of law which consists in the
declaration of legal rules by competent authority. Legislation is direct source of law.
legislation frames new laws amends old law and cancels existing laws. it not only
creates new rules of law it also sweeps away existing inconvenient laws.

There are two types of legislation

→ Supreme legislation and subordinate legislation

supreme legislation - Supreme legislation is the expression of the legislative will of a
supreme authority in a state. It is supreme because no authority can annually modify
or control it. It proceeds from the sovereign or supreme legislative power in the
state, and which is therefore, incapable of being ruled by any other legislative
authority.

• Colonial legislation
• Executive legislation
• Judicial legislation
• Municipal legislation
• Autonomous legislation
subordinate legislation- Subordinate legislation is that which proceeds from any
authority other than the sovereign legislation power, and is, therefore, dependent
for its existence or validity on some superior or supreme legislative authority. It
comes from a subordinate legislature or any authority and is subject to the repealing
or sanctioning control of a superior legislation.
Precedent
Precedent is one of the sources of law. The judgements passed by some of the
learned jurists became another significant source of law. When there is no
legislature on particular point which arises in changing conditions, the judges depend
on their own sense of right and wrong and decide the disputes. Such decisions
become authority or guide for subsequent cases of a similar nature and they are
called precedents.
According to Salmond, ‘in a loose sense, it includes merely reported case law which
may be cited & followed by courts. 'In a strict sense, that case law which not only has
a great binding authority but must also be followed.

Types of precedent
• Authoritative precedents or absolute precedent: whether judge approve it or
not this kind of precedent must be followed.
• Conditional precedent: The judge may disregard either by dissenting or by
over ruling it known as conditional precedent.
• Persuasive precedents: Judges have no obligation to follow can take into
consideration. Precedent of other court e.g.-Foreign court.
In general, in the judicial field, it means the guidance or authority of past decisions
for future cases. Only such decisions as lay down some new rule or principle are
called judicial precedents. The application of such judicial decisions is governed by
different principles in different legal systems. These principles are called ‘Doctrine of
Precedent’. For this case to be held, first such precedents must be reported, maybe
cited and may probably be followed by courts. Secondly, the precedent under
certain circumstances must be followed.

Customs-
A custom is a rule which in a particular family or in a particular district or in a
particular section, class or tribe, has from long usage obtained the force of law.
English law defines custom as a law not written, which being established by long use
and consent of our ancestors has been and daily is put into practice. Custom as a
source of law got recognition since the emergence of Savigny on the horizon of
jurisprudence.
Austin- “Custom is a rule of conduct which the governed observe spontaneous and
not in pursuance of law settled by a political superior.”

Types of customs

Legal Custom and Conventional Custom.

Legal custom- According to Salmond, a legal custom is one whose legal authority is
absolute, one which in itself and possesses the force of law:

Types of legal customs-

(a) General Custom: General customs are those which have force of law throughout
the territory. The common law of England is based upon general customs of the
realm.

(b) Local Custom: the local customs are those which operate have the force of law in
a particular locality. The authority of a local custom is higher than that of general
custom.

→ Following are the requisites for a valid custom

1. Immemorial
2. Reasonable
3. Continuous
4. Peaceable enjoyment
5. Certainty
6. Compulsory Observance
7. General or Universal

What is the source of above law [appointment of judges of

supreme court]?
Precedent is the source of law in which the appointment of judges of supreme court
lies
As far the process of appointment of a supreme court judge is concerned it has a
very interesting history and few landmark cases are connected to it.

Appointment of supreme court judge-:

The Constitution of India – Article 124:

→ There shall be a Supreme Court of India consisting of a Chief Justice of India
and, until Parliament by law prescribes a larger number, of not more than
seven other Judges.
→ Every Judge of the Supreme Court shall be appointed by the President by
warrant under his/her hand and seal after consultation with such of the Judges
of the Supreme Court and of the High Court in the States as President may
deem necessary for the purpose and shall hold office until he attains the age
of 65 years.
→ In judicial appointments, it is obligatory for the President to take into account
the opinion of the Chief Justice of India
After independence, India adopted the Constitution in 1950. According to the
Constitution, up to 1973, the President appointed the Chief Justice of India and
remaining judges of the Supreme Court in consultation with the CJI and other judges
as he deemed necessary.
1. Appointment of CJI 1950-1973

→ Until 1973, there existed a consensus between the Government of the day and
the Chief Justice of India.
→ A convention was formed where the senior-most judge of the Supreme Court
was to be appointed as the Chief Justice of India.
→ In 1973, A.N.Ray was appointed as the Chief Justice of India. This violated the
convention formed earlier since Justice A.N.Ray superseded three other
Supreme Court judge's senior to him.
→ Again in 1977, another chief justice was appointed who superseded his seniors.
→ This resulted in a clash between the Executive and the Judiciary.

2. First judges' case, 1982

→ A petition was filed in 1982 in the Supreme Court of India.
→ This case is known as the S.P.Gupta Case or First Judges case.
→ The Supreme Court discussed 2 major points during the proceedings of this
case
→ When asked the Supreme Court of India whether the word “consultation” in
the constitutional article 124 mean “concurrence”; the Supreme court
overruled this and denied saying that Consultation does not mean
concurrence. The President was not bound to make a decision based on the
consultation of the Supreme Court.
 → Another important point in the discussion, in this case, was the part where the
Supreme Court decided that a High Court Judge can be transferred to any other
high court of a state even against his will.

3. Second judges' case,1993

→ Another petition was filed in 1993 by the Supreme Court Advocates on Record
Association (SCARA).
→ In this case, the Supreme court overruled its earlier verdict and changed the
meaning of consultation to concurrence. Thus, binding the President of India
with the consultations of the Chief justice of India.
→ This resulted in the birth of the Collegium System.
4. Third Judges Case, 1998

→ In the year 1998, the presidential reference to the Supreme court was issued
questioning the meaning of the word consultation in articles 124, 217, and 222
of the Constitution.
→ The chief justice won’t be the only one as a part of the consultation process.
Consultation would include a collegium of 4 senior-most judges of the
Supreme court. Even if 2 of the judges are against the opinion, the CJI will not
recommend it to the government.
→ In the verdict, the Supreme Court laid down strict guidelines for the
appointment of Judges of the Supreme Court and high courts which is currently
known as the Collegium System.
→ 5. Collegium System
→ In this system of appointment of Judges, the collegium will recommend the
names of the candidates to the Central Government.
→ Also, the central government will send the names of the proposed candidates
for consultation.
→ The appointment process takes a long time since there isn’t a fixed time limit
for it. If the Collegium resends the same name again then the government has
to give its assent to the names.
→ The Collegium System faced a lot of criticism not only from the government but
also from civil society due to its Lack of Transparency and Accountability.
→ This led to the 99th Constitutional Amendment Act, 2014 the National
Judicial Commission Act (NJAC) to replace the collegium system for the
appointment of judges.
→ 6. National Judicial Appointment Commission Act, 2014
→ The 1993 judgment was the basis on which a five-judge Constitution Bench
declared the National Judicial Appointments Commission Act (NJAC) and the
Constitutional (Ninety-Nine Amendment) Act, 2014 unconstitutional in
October 2015.
→ NJAC too would recommend names for the Appointment of Supreme Court
Judge and Appointment and Transfer of High Court Judge
 → Composition of NJAC
o The Chief Justice of India
o 2 senior-most judges of the Supreme Court
o The Law Minister of India
o 2 eminent members that are chosen by the Selection Committee

Personal views on collegium system of appointment of judge

Collegium system refers to a system of appointment transfer and promotion of judges
in the High Court or Supreme Court it comprises of Chief Justice along with 4 seniors
most judges depending whether it is the High Court or Supreme Court the advice of
collegium is binding on the president while making appointments and hence it is also
referred to as a system of judges appointing judges
The word Collegium finds no mention in the constitution of India and is entirely a
judicial invention and has been in existence since the 90s when the Supreme Court
judges felt that autonomy of judiciary is in danger when the government at the time
don't adjust by passing. 3 of his senior colleagues in exchange of a favourable
judgement in the case of keshwanand Bharati VS state of Kerala 1973 in protest of this
action the bypass submitted there resignation and it was at that time in the third
judges' case that the collision system was given a find and formal shape by the
Supreme Court.
the existence of collision is based on the premise that it will keep the executive
enforced in judicial matters at bay, and promote separation of power which goes as
per the provision of article 50 of Indian constitution and ultimately help establish
judiciary which is important
Although the idea of collegium was ideal but the ground realities are different instead
of creating an efficient and better system it ended up being a opaque,secretive system
which promoted a system of ‘quid pro quo’
It is also criticised for not disclosing its data and creating a Democratic report in the
Indian judiciary as there is no information as to how and when a collision meets an
their way of taking a decision it ultimately ends up creating an empire within an
empire.
the judiciary of a country is supposed to uphold the law of the land and such
perception in the minds of the public is not good recently there have been calls of
transparency in the method of appointing transferrs etc of judges by the executive as
well as the general public setting up off national judicial appointment Commission and
NJAC was also suggested which was structured by the Supreme Court well instead of
MOP watch suggested by the Supreme Court which will help increase transparency in
the high time that the executive legislation and judiciary should join hands and come
out with a system which excludes transparency and accountability so that the public
do not lose faith in the judiciary and the ills of system could be overcome.