Unit-3 Legal Method E-Notes

Chanderprabhu Jain College of Higher
Studies
&
School of Law
An ISO 9001:2008 Certified Quality Institute
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha
University, Delhi)
Class : BBALLB (H)
Paper Code : LLB (101)
Subject : LEGAL METHOD
Faculty Name: Ms. Sukanya Sharma
UNIT III
BASIC CONCEPTS OF INDIAN LEGAL SYSTEM
 COMMON LAW FOUNDTION
Most nations today follow one of two major legal traditions: common law or civil
law. The common law tradition emerged in England during the Middle Ages and
was applied within British colonies across continents. The civil law tradition
developed in continental Europe at the same time and was applied in the colonies
of European imperial powers such as Spain and Portugal. Civil law was also
adopted in the nineteenth and twentieth centuries by countries formerly possessing
distinctive legal traditions, such as Russia and Japan, that sought to reform their
legal systems in order to gain economic and political power comparable to that of
Western European nation-states.
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that there is no comprehensive compilation of legal rules and statutes.
University, Delhi) While
common law does rely on some scattered statutes, which are legislative decisions,
it is largely based on precedent, meaning the judicial decisions that have already
been made in similar cases. These precedents are maintained over time through the
records of the courts as well as historically documented in collections of case law
known as yearbooks and reports. The precedents to be applied in the decision of
each new case are determined by the presiding judge. As a result, judges have an
enormous role in shaping American and British law. Common law functions as an
adversarial system, a contest between two opposing parties before a judge who
moderates. A jury of ordinary people without legal training decides on the facts of
the case. The judge then determines the appropriate sentence based on the jury’s
verdict. Civil Law, in contrast, is codified. Countries with civil law systems have
comprehensive, continuously updated legal codes that specify all matters capable
of being brought before a court, the applicable procedure, and the appropriate
punishment for each offense. Such codes distinguish between different categories
of law: substantive law establishes which acts are subject to criminal or civil
prosecution, procedural law establishes how to determine whether a particular
action constitutes a criminal act, and penal law establishes the appropriate penalty.
In a civil law system, the judge’s role is to establish the facts of the case and to
apply the provisions of the applicable code. Though the judge often brings the
formal charges, investigates the matter, and decides on the case, he or she works
within a framework established by a comprehensive, codified set of laws. The
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judge’s decision is consequently less
University,
crucialDelhi)
in shaping civil law than the decisions
of legislators and legal scholars who draft and interpret the codes.
Historical development of English Common Law
English common law emerged from the changing and centralizing powers of the
king during the Middle Ages. After the Norman Conquest in 1066, medieval kings
began to consolidate power and establish new institutions of royal authority and
justice. New forms of legal action established by the crown functioned through a
system of writs, or royal orders, each of which provided a specific remedy for a
specific wrong. The system of writs became so highly formalized that the laws the
courts could apply based on this system often were too rigid to adequately achieve
justice. In these cases, a further appeal to justice would have to be made directly to
the king. This difficulty gave birth to a new kind of court, the court of equity, also
known as the court of Chancery because it was the court of the king’s chancellor.
Courts of equity were authorized to apply principles of equity based on many
sources (such as Roman law and natural law) rather than to apply only the common
law, to achieve a just outcome. Courts of law and courts of equity thus functioned
separately until the writs system was abolished in the mid-nineteenth century. Even
today, however, some U.S. states maintain separate courts of equity. Likewise,
certain kinds of writs, such as warrants and subpoenas, still exist in the modern
practice of common law. An example is the writ of habeas corpus, which protects
the individual from unlawful detention. Originally an order from the king obtained
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by a University,
prisoner or on his behalf, a writ Delhi) corpus summoned the
of habeas prisoner to
court to determine whether he was being detained under lawful authority. Habeas
corpus developed during the same period that produced the 1215 Magna Carta, or
Great Charter, which declared certain individual liberties, one of the most famous
being that a freeman could not be imprisoned or punished without the judgment of
his peers under the law of the land—thus establishing the right to a jury trial. In the
Middle Ages, common law in England coexisted, as civil law did in other
countries, with other systems of law. Church courts applied canon law, urban and
rural courts applied local customary law, Chancery and maritime courts applied
Roman law. Only in the seventeenth century did common law triumph over the
other laws, when Parliament established a permanent check on the power of the
English king and claimed the right to define the common law and declare other
laws subsidiary to it. This evolution of a national legal culture in England was
contemporaneous with the development of national legal systems in civil law
countries during the early modern period. But where legal humanists and
Enlightenment scholars on the continent looked to shared civil law tradition as well
as national legislation and custom, English jurists of this era took great pride in the
uniqueness of English legal customs and institutions. That pride, perhaps mixed
with envy inspired by the contemporary European movement toward codification,
resulted in the first systematic, analytic treatise on English common law: William
Blackstone’s (1723-1780) Commentaries on the Laws of England. In American
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law, Blackstone’s work now functions as theDelhi)
University, definitive source for common law
precedents prior to the existence of the United States.
 RULE OF LAW
Origin And Concept Of Rule Of Law
The concept of “Rule of Law" is the building block on which the modern
democratic society is founded. For the successful functioning of the polity it is
imperative that there is enforcement of law and of all contracts based on law. Laws
are made for the welfare of the people to maintain harmony between the
conflicting forces in society. One of the prime objects of making laws is to
maintain law and order in society and develop a peaceful environment for the
progress of the people. The concept of Rule of Law plays an important role in this
process.
The term “Rule of Law" is derived from the French phrase 'La Principe de
Legality' (the principle of legality) which refers to a government based on
principles of law and not of men. In a broader sense Rule of Law means that Law
is supreme and is above every individual. No individual whether if he is rich, poor,
rulers or ruled etc are above law and they should obey it. In a narrower sense the
rule of law implies that government authority may only be exercised in accordance
with the written laws, which were adopted through an established procedure. The
principle of Rule of Law is intended to be a safeguard against arbitrary actions of
the government authorities. The rule of law has been described as a “rare and
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protean principle of our political University,
tradition".Delhi)
The rule of law centrally comprises
“the values of regularity and restraint, embodied in the slogan of “‘a government of
laws, not men’". The term Rule of Law does not provide any thing about how the
laws are to be made, or anything specific like the Fundamental Rights or the
Directive principles or equality etc. but it provides for two basic concepts that is
Law must be obeyed by the people and that the law must be made in such a way
that it is able to guide the behaviour of its subjects. Different legal theorists have
different approaches towards the concept of Rule of Law. Some believe that the
rule of law has purely formal characteristics, meaning that the law must be publicly
declared, with prospective application, and possess the characteristics of
generality, equality, and certainty, but there are no requirements with regard to the
content of the law. While other legal theorists believe that the rule of law
necessarily entails protection of individual rights. Within legal theory, these two
approaches to the rule of law are seen as the two basic alternatives, respectively
labeled the formal and substantive approaches.
The concept of Rule of Law is very old. In the thirteenth century Bracton, a judge
in the reign of Henry III in a way introduced the concept of Rule of Law without
naming it as Rule of Law. He wrote:
"The king himself ought to be subject to God and the law, because law makes him
king."
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Edward University,
Coke is said to be the originator ofDelhi)
concept of Rule of Law when he said
that the king must be under God and law and thus vindicated the supremacy of law
over the pretensions of the executives. In India, the concept of Rule of Law can be
traced back to the Upanishad. It provides that Law is the King of Kings. It is more
powerful and higher than the Kings and there is nothing higher than law. By its
powers the weak shall prevail over the strong and justice shall triumph. But the
credit for developing the concept of Rule of Law goes to Professor A.V. Dicey
who in his classic book “Introduction to the Study of the Law of the Constitution"
published in the year 1885 tried developing the concept of Rule of Law. As per
Diecy no man is punishable or can be lawfully made to suffer in body or goods
except for a distinct breach of law established in the ordinary legal manner before
the ordinary Courts of the land. This establishes the fact that law is absolutely
supreme and it excludes the existence of arbitrariness in any form. According to
Diecy where there is scope discretion there is room for arbitrariness. So Dicey held
that every man, whatever be his rank or condition, is subject to the ordinary law of
the realm and amenable to the jurisdiction of the ordinary tribunals.
DICEY'S THEORY of Rule of Law consists of three main principles:
1. Absence of Arbitrary Power or Supremacy of Law: As per Dicey Rule of law

means the absolute supremacy of law and 'no man is punishable or can lawfully be
made to suffer in body or goods except for a distinct breach of law established in
the ordinary legal manner before the courts of the land. Diecy was of the view that
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all University,man
individuals whether if he is a common Delhi)
or government authority are bound
to obey the law. He is of the view that no man can be punished for any thing else
than a breach of law which is already established. And also that the alleged offence
is required to be proved before the ordinary courts in accordance with ordinary
procedure.
2. Equality before Law: As per Diecy Rule of law, in the second principle, means
the equality of law or equal subjection of all classes of people to the ordinary law
of the land which is administered by the ordinary law courts. In this sense rule of
law conveys that no man is above the law. Even the Government Officials are
under a duty to obey the same law and there can be no other special courts for
dealing specifically with their matters.
3. Constitution is the result of the ordinary law of the land: As per Diecy , in many
countries rights such as right to personal liberty, freedom, arrest etc are provided
by the written Constitution of a Country. But in England these rights are a result of
the judicial decisions that have arisen due to the conflict between the parties. The
constitution is not the source but the consequence of the rights of the individuals.
But this principle of Diecy is not applicable in India as in India we consider the
Constitution to be the basic ground work of laws from which all other laws are
derived.
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COMPONENTS OF RULE OF LAW: University,
RuleDelhi)
of Law is a dynamic concept but it is
somewhat difficult to define. Every person has its own way of defining rule of law
some think it to be the supremacy of law; some think it to be the principles like
clarity, universality, stability etc. Due to all these reasons certain ingredients of
Rule of Law have been identified and all which need to exsist for the concept of
Rule of Law to survive.
Common ingredients of Rule of Law are:
 a government bound by and ruled by law

 equality before the law
 the establishment of law and order;
 the efficient and predictable application of justice; and
 the protection of human rights.
Rule of law in modern era
Today Diecy's theory of rule of law cannot be accepted in its totality. The modern
concept of the rule of law is fairly wide and therefore sets up an ideal for any
government to achieve. This concept was developed by the International
Commission of Jurists. Known as Delhi Declaration, 1959 which was latter on
confirmed at logos in 1961. According to this formulation-
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"The rule of law implies that theUniversity,
functionsDelhi)
of the government in a free society
should be so exercised as to create conditions in which the dignity of man as an
individual is upheld. This dignity requires not only the recognition of certain civil
or political rights but also creation of certain political, social, economical,
educational and cultural conditions which are essential to the full development of
his personality".
According to Davis, there are seven principal meanings of the term “Rule of law:
(1) law and order; (2) fixed rules; (3) elimination of discretion; (4) due process of
law or fairness; (5) natural law or observance of the principles of natural justice;
(6) preference for judges and ordinary courts of law to executive authorities and
administrative tribunals; and (7) Judicial review of administrative actions. So
finally it may correctly be said that rule of law does not mean and cannot mean any
government under any law. It means the rule by a democratic law-a law which is
passed in a democratically elected parliament after adequate debate and discussion.
Likewise, Sir Ivor Jennings says -
"In proper sense rule of law implies a democratic system, a constitutional

government where criticism of the government is not only permissible but also a
positive merit and where parties based on competing politics or interests are not
only allowed but encouraged. Where this exist the other consequences of rule of
law must follow".
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 SEPRATION OF POWERS University, Delhi)
The separation of powers is based on the principle of trias politica. The Doctrine
of Separation of Power is the forerunner to all the constitutions of the world, which
came into existence since the days of the “Magna Carta”. Though Montesquie u
was under the erroneous impression that the foundations of the British constitution
lay in the principle of Separation of Power, it found its genesis in the American
Constitution. Montesquieu had a feeling that it would be a panacea to good
governance but it had its own drawbacks. A complete Separation of power without
adequate checks and balances would have nullified any constitution. It was only
with this in mind the founding fathers of various constitutions have accepted this
theory with modifications to make it relevant to the changing times. The Doctrine
of “Separation of Powers”, a vintage product of scientific political philosophy is
closely connected with the concept of “judicial activism”. “Separation of Powers”
is embedded in the Indian Constitutional set up as one of its basic features. In India
the fountain-head of power is the Constitution. The sovereign power has been
distributed among the three-wings:
-Legislature -Executive -Judiciary
The doctrine of separation of powers envisages a tripartite system. Powers are

delegated by the Constitution to he three organs, and delineating the jurisdiction of
each.
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The position in India is that the University,
doctrine Delhi)
of separation of powers has not been
accorded a constitutional status. In the Constituent Assembly there was a proposal
to incorporate this doctrine in the Constitution but it was knowingly not accepted
and as such dropped. Apart from the directive principles laid down in Article 50
which enjoins separation of judiciary from the executive, the constitutional scheme
does not embody any formalistic and dogmatic division of powers.
Historical Background
The tripartite model of governance has its origin in Ancient Greece and Rome.
Though the doctrine is traceable to Aristotle but the writings of Locke and
Montesquieu gave it a base on which modern attempts to distinguish between
legislative, executive and judicial power is grounded. The doctrine may be traced
to ancient and medieval theories of mixed government, which argued that the
processes of government should involve the different elements in society such as
monarchic, aristocratic, and democratic interests. The first modern formulation of
the doctrine was that of the French writer Montesquieu in De l’esprit des lois
(1748), although the English philosopher John Locke had earlier argued that
legislative power should be divided between king and parliament.
Locke distinguished between what he called:
 Discontinuous legislative power
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 Continuous executive power University, Delhi)
 Federative power.
He included within ‘discontinuous legislative power’ the general rule-making

power called into action from time to time and not continuously. ‘Continuous
executive power’ included all those powers, which we now call executive and
judicial. By ‘federative power’ he meant the power of conducting foreign affairs.
Montesquieu’s division of power included a general legislative power and two
kinds of executive powers; an executive power in the nature of Locke’s ‘federative
power’ and a ‘civil law’ executive power including executive and judicial power.
It was Montesquieu who for the first time gave it a systematic and scientific
formulation in his book ‘Esprit des Lois (The Spirit of the laws) published in the
year 1748. Locke and Montesquieu derived the contents of this doctrine from the
developments in the British constitutional history of the 18th Century. In England
after a long war between the Parliament and the King, they saw triumph of
Parliament in 1688, which gave Parliament legislative supremacy culminating in
the passage of Bill of Rights. This led ultimately to a recognition by the King of
legislative and tax powers of the Parliament and the judicial powers of the courts.
At that time, the King exercised executive powers, Parliament exercised legislative
powers and the courts exercised judicial powers, though later on England did not
stick to this structural classification of functions and changed to the parliamentary
form of government.
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After the University,
end of the war of independence inDelhi)
America by 1787 the founding fathers
of the American constitution drafted the constitution of America and in that itself
they inserted the Doctrine of separation of power and by this America became the
first nation to implement the Doctrine of separation of power throughout the world.
The constituent Assembly Of France in 1789 was of the view that “there would be
nothing like a Constitution in the country where the doctrine of separation of
power is not accepted”. In France, where the doctrine was preached with great
force by Montesquieu, it was held by the more moderate parties in the French
Revolution. However the Jacobins, Napoleon I and Napoleon III discarded the
above theory for they believed in the concentration of power. But it again found its
place in the French Constitution of 1871.
Later Rousseau also supported the said theory propounded by Montesquieu.
England follows the parliamentary form of government where the crown is only a
titular head. The mere existence of the cabinet system negates the doctrine of
separation of power in England as the executive represented by the cabinet remains
in power at the sweet will of the parliament.
In India under the Indian constitution there is an express provision under article 50
of the constitution which clearly states that the state should take necessary steps to
separate judiciary from the executive i.e. independence of judiciary should be
maintained.
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University, Delhi)
Montesquieu’s Theory
According to this theory, powers are of three kinds: Legislative, executive and
judicial and that each of these powers should be vested in a separate and distinct
organ, for if all these powers, or any two of them, are united in the same organ or
individual, there can be no liberty. If, for instance, legislative and executive powers
unite, there is apprehension that the organ concerned may enact tyrannical laws
and execute them in a tyrannical manner. Again, there can be no liberty if the
judicial power be not separated from the legislative and the executive. Where it
joined the legislative, the life and liberty of the subject would be exposed to
arbitrary control, for the judge would then be the legislator. Where it joined with
the executive power, the judge might behave with violence and oppression.
Writing in 1748, Montesquieu said:
“When the legislative and the executive powers are united in the same person or in
the same body of magistrates, there can be no liberty, because apprehensions may
arise, lest the same monarch or senate should exact tyrannical laws, to execute
them in a tyrannical manner. Again there is no liberty if the judicial power be not
separated from the legislative and the executive. Where it joined with the
legislative, the life and the liberty of the subject would be exposed to arbitrary
control; for the judge would be then a legislator. Where it joined to the executive
power, the judge might behave with violence and oppression.
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There University,
would be an end of everything, Delhi)the same man or the same
where body,
whether of nobles or of the people, to exercise those three powers, that of enacting
laws, that of executing the public resolutions and of trying the causes of
individuals.”
The theory of separation of powers signifies three formulations of structural

classification of governmental powers:
 The same person should not form part of more than one of the three organs
of the government. For example, ministers should not sit in the Parliament.
 One organ of the government should not interfere with any other organ of
the government.
 One organ of the government should not exercise the functions assigned to
any other organ.
Now the question in subject is whether this doctrine finds a place in England? In
England the King being the executive head s also an integral part of the legislature.
His ministers are also members of one or other Houses of Parliament. This concept
goes against the idea that same person should not form part of more than one organ
of the Government.
In England House of Commons control the executive. So far as judiciary is

concerned, in theory House of Lords is the highest Court of the country but in
practice judicial functions are discharged by persons who are appointed specially
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for this purpose, they are known asUniversity,
Law LordsDelhi)
and other persons who held judicial
post. Thus we can say that doctrine of separation of powers is not an essential
feature of British Constitution.
Principle of Checks and Balances
The doctrine of separations of powers may be traced back to an earlier theory

known as the theory of mixed government from which it has been evolved. That
theory is of great antiquity and was adurnbrated in the writings of Polybius, a great
historian who was captured by the Romans in 167 BC and kept in Rome as a
Political hostage for 17 years in his history of Rome.
Polybius explained the reasons for the exceptional stability of Roman Government
which enabled Rome to establish a worldwide empire. He advanced the theory that
the powers of Rome stemmed from her mixed government. Unmixed systems of
government that is the three primary forms of government namely, Monarchy,
Aristocracy and Democracy – were considered by Polybius as inherently unstable
and liable to rapid degeneration.
The Roman constitutions counteracted that instability and tendency to degeneration
by a happy mixture of principles drawn from all the three primary forms of
government. The consuls, the senate and the popular Assemblies exemplified the
monarchical, the aristocratic and the democratic principles respectively.
The powers of Government were distributed between them in such a way that each
checked and was checked by the others so that an equipoise or equilibrium was
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achieved University,
which imparted a remarkable Delhi)
stabiliy to the constitutional structure. It is
from the wok of Polybius that political theorist in the 17th Century evolved that
theory of separation of powers and the closely related theory of Checks and
Balances.
Effects
The doctrine of separation of powers as propounded by Montesquieu had
tremendous impact on the development of administrative law and functioning of
Governments. It was appreciated by English and American jurists and accepted by
politicians. In his book ‘Commentaries on the Laws of England’, published in
1765, Blackstone observed that if legislative, executive and judicial functions were
given to one man, there was an end of personal liberty. Madison also proclaimed:
“The accumulation of all powers, legislative and executive and judicial, in the
same hands, whether of one, a few or many and whether hereditary, self-appointed
or elective may justly be pronounced the very definition of tyranny.” The
Constituent Assembly of France declared in 1789 that there would be nothing like
a Constitution in the country where the doctrine of separation of powers was not
accepted.
Importance
The doctrine of separation of power in its true sense is very rigid and this is one of
the reasons of why it is not accepted by a large number of countries in the world.
The main object as per Montesquieu in the Doctrine of separation of power is that
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there should be government of law University,
ratherDelhi)
that having will and whims of the
official. Also another most important feature of the above said doctrine is that there
should be independence of judiciary i.e. it should be free from the other organs of
the state and if it is so then justice would be delivered properly. The judiciary is the
scale through which one can measure the actual development of the state if the
judiciary is not independent then it is the first step towards a tyrannical form of
government i.e. power is concentrated in a single hand and if it is so then there is a
cent percent chance of misuse of power. Hence the Doctrine of separation of power
do plays a vital role in the creation of a fair government and also fair and proper
justice is dispensed by the judiciary as there is independence of judiciary.
Also the importance of the above said doctrine can be traced back to as early as
1789 where The constituent Assembly Of France in 1789 was of the view that
“there would be nothing like a Constitution in the country where the doctrine of
separation of power is not accepted”. Also in 1787 the American constitution
inserted the provision pertaining to the Doctrine of separation of power at the time
of drafting of the constitution in 1787.
Defects
Though, theoretically, the doctrine of separation of powers was very sound, many
defects surfaced when it was sought to be applied in real life situations. Mainly, the
following defects were found in this doctrine:
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a) Historically speaking, the theoryUniversity, Delhi) There was no separation
was incorrect.
of powers under the British Constitution. At no point of time, this doctrine
was adopted in England.
As Prof. Ullman says: “England was not the classic home of separation of powers.”
It is said: “Montesquieu looked across foggy England from his sunny vineyard in
Paris and completely misconstrued what he saw.”
b) This doctrine is based on the assumption that the three functions of the
Government viz legislative, executive and judicial are independent of
distinguishable from one another. But in fact, it is not so. There are no watertight
compartments. It is not easy to draw demarcating line between one power and
another with mathematical precision.
c) It is impossible to take certain actions if this doctrine is accepted in this entirety.

Thus, if the legislature can only legislate, then it cannot punish anyone, committing
a breach of its privilege; nor can it delegate any legislative function even though it
does not know the details of the subject-matter of the legislation and the executive
authority has expertise over it; nor could the courts frame frame rules of procedure
to be adopted by them for the disposal of cases. Separation of Powers, thus can
only be relative and not absolute.d) Modern State is a welfare State and it has to
solve complex socio-economic problems and in this state of affairs also, it is not
possible to stick to this doctrine. Jusice Frankfurter said; “Enforcement of a rigid
conception of separation of powers would make modern Government impossible.”
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Strict University,absurdity
separation of powers is a theoretical Delhi) and practical impossibility. e)
The modern interpretation of the doctrine of Separation of Powers mans that
discretion must be drawn between ‘essential’ and ‘incidental’ powers and one
organ of the Government cannot usurp or encroach upon the essential functions
belonging to another organ, but may exercise some incidental functions thereof. f)
Fundamental object behind Montesquieu’s doctrine was liberty and freedom of an
individual; but that cannot be achieved by mechanical divison of functions and
powers. In England, theory of Separation of Powers is not accepted and yet it is
known for the protection of individual liberty. For freedom and liberty, it is
necessary that there should be Rule of Law and impartial and independent
judiciary and eternal vigilance on the part of subjects.
Indian Outlook
In India, the doctrine of separation of powers has not been accorded a

constitutional status. Apart from the the directive principle laid down in Article 50
which enjoins separation of judiciary from the executive, the constitutional scheme
does not embody any formalistic and dogmatic division of powers. The Supreme
Court in Ram JawayaKapur v. State of Punjab, held:
“Indian Constitution has not indeed recognized the doctrine of separation of

powers in its absolute rigidity but the functions of the different parts or branches of
the government have been sufficiently differentiated and consequently it can be
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very well said that our ConstitutionUniversity,
does notDelhi)
contemplate assumption by one organ
or part of the State of functions that essentially belong to another.”
In Indira Nehru Gandhi v. Raj Narain, Ray C.J.also observed that in the Indian
Constitution there is separation of powers in a broad sense only. A rigid separation
of powers as under the American Constitution or under the Australian Constitution
does not apply to India. However, the Court held that though the constituent power
is independent of the doctrine of separation of powers to implant the story of basic
structure as developed in the case of KesavanandaBharati v. State of Kerela on the
ordinary legislative powers will be an encroachment on the theory of separation of
powers. Nevertheless, Beg, J. added that separation of powers is a part of the basic
structure of the Constitution. None of the three separate organs of the Republic can
take over the functions assigned to the other. This scheme of the Constitution
cannot be changed even by resorting to Article 368 of the Constitution.
In India, not only is there a functional overlapping but there is personnel

overlapping also. The Supreme Court has the power to declare void the laws
passed by the legislature and the actions taken by the executive if the violate any
provision of the Constitution or the law passed by the legislature in case of
executive actions. Even the power to amend the Constitution by Parliament is
subject to the scrutiny of the Court. The Court can declare any amendment void if
it changes he basic structure of the Constitution. The President of India in whom
the Executive Authority of India is vested exercises law making power in the shape
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of ordinance making power and also University, Delhi) powers under Article 103(1)
the judicial and
Article 217(3) to mention only a few. The Counsel of Ministers is selected from
the Legislature and is responsible to the Legislature. The Legislature besides
exercising law making powers exercises judicial powers incases of breach of its
privilege, impeachment of the President and the removal of the judges. The
Executive may further affect the functioning of the judiciary by making
appointments to the office of the Chief Justice and other Judges.
Judicial Opinion on the Doctrine of Separation of Powers
The separation of power there were times where the judiciary has faced tough
challenges in maintaining and preserving the Doctrine of separation of power and
it has in the process of preservation of the above said Doctrine has delivered
landmark judgments which clearly talks about the independence of judiciary as
well as the success of judiciary in India for the last six decades.
The first major judgment by the judiciary in relation to Doctrine of separation of

power was in Ram Jawaya v state of Punjab[xxv]. The court in the above case
was of the opinion that the Doctrine of separation of power was not fully accepted
in India. Further the view of Mukherjea J adds weight to the argument that the
above said doctrine is not fully accepted in India. He states that:
“The Indian constitution has not indeed recognize the doctrine of separation of
powering its absolute rigidity but the functions of the different parts or branches of
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the University,
government have been sufficiently Delhi)
differentiated and consequently it can very
well be said that our constitution does not contemplate assumption, by one organ
or part of the state, of functions that essentially belong to another”.
Later in I.C.GolakNath v State of Punjab, SubhaRao, C.J opined that “The

constitution brings into existence different constitutional entitles, namely the union,
the state and the union territories. It creates three major instruments of power,
namely the Legislature, the Executive and the Judiciary. It demarcates their
jurisdiction minutely and expects them to exercise their respective powers without
overstepping there limits. They should function with the spheres allotted to them”
The above opinion of the court clearly states the change in the courts view
pertaining to the opinion in the case of Ram Jawaya v State of Punjab related to the
doctrine of separation of power. The came one of the most land mark judgments
delivered by the Supreme Court in KeshvanandaBharti v Union of Indiathe court
was of the view that amending power was now subject to the basic features of the
constitution. And hence, any amendment tampering these essential features will be
struck down as unconstitutional. Beg, J. added that separation of powers is a part of
the basic structure of the constitution. None of the three separate organs of the
republic can take over the functions assigned to the other7. Hence this further
confirmed the opinion of the court in relation to the doctrine of separation of
power.
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Then in Indira Gandhi Nehru v.University, Delhi)where the dispute regarding
Raj Narain, P.M.
election was pending before the Supreme Court, opined that adjudication of a
specific dispute is a judicial function which parliament, even under constitutional
amending power, cannot exercise i.e. the parliament does not have the jurisdiction
to perform a function which the other organ is responsible for otherwise there will
be chaos as there will be overlapping of the jurisdictions of the three organs of the
state. Also the constituent Assembly Of France in 1789 was of the view that “there
would be nothing like a Constitution in the country where the doctrine of
separation of power is not accepted. So if there is a provision then there should be
proper implementation and this judgment emphasis on that point only.
Also in I.R. Coelho vs. State of Tamil Nadu[xxvii], S.C. took the opinion opined
by the Supreme court in Kesavananda Bharaticase pertaining to the doctrine of
basic structure
and held that the Ninth Schedule is violative of the above said doctrine and hence
from now on the Ninth Schedule will be amenable to judicial review which also
forms part of the basic structure theory..
From the above few case laws right from Ram Jawaya v state of Punjab in 1955
to I.R. Coelho vs. State of Tamil Nadu inthere has been a wide change of opinion
as in the beginning the court was of the opinion that as such there is no Doctrine of
Seperation of Power in the constitution of India but then as the passage
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of time the opinion of the SupremeUniversity,
Court hasDelhi)
also changed and now it do includes
the above said Doctrine as the basic feature of the Constitution.
 PRINCIPLES OF NATURL JUSTICE
The principle of natural justice or fairness is the sine qua non of a democratic
government.
Principles of natural justice includes:
 Rule against bias: Bias may include:
(i) Personal Bias; (ii) Pecuniary Bias ; (iii) Subject-matter Bias; (iv) Departmental
Bias; (v) Preconceived notion bias.
 (b) Rule of audi alteram Partem: This right to fair hearing includes:
(i) Right to know adverse evidence; (ii) Right to present case; (iii) Right to rebut
evidence; (iv) Right to cross-examination and legal re presentation; (v) Right to
reasoned decision, etc.
 (c) Reasoned Decision
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‘Bias’ means an operative prejudice,
University,whether
Delhi) conscious or unconscious, in
relation to a party or issue. This is the idea that the judge may well have “strong
views" or “preconceived ideas" concerning the case before them.
Bias arising out of preconceived notions is the subject of this paper. The problem is
that no judge can be expected to keep his mind blank like a sheet of paper, but at
the same time, preconceived notions would defeat the very purpose of a fair trial.
A celebrated judgment to illustrate this point came in the English case of Franklin
v Minister of Town and Country Planning where the House of Lords stated that the
minister had a genuine duty to give consideration to a report of an inspector
concerning the siting of a new town at Stevenage and to consider objections to that
position. It was held that reference to bias was out of place in this situation.
However, even though the result is the same, the reasoning of the Court of Appeal
is to be preferred, which stated that complete impartiality cannot be expected.
Also, impartiality in the context of a minister making a decision, such as the siting
of a new town, would not be the same as when a Magistrate decides a case.
However, while complete impartiality is difficult to achieve, procedural fairness
may require the minister to still hear representations.
Again, in R. v. Secretary of State for the Environment, ex p. Brent London

Borough Council, the applicant local authorities claimed that they should be
entitled to make such representations to the minister as to the way in which he
should use his powers in issuing local authority grants. The court held that the
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minister University,
was under a duty to act fairly in theDelhi)
way he exercised his discretion under
the legislation, although the court accepted that the minister would not be expected
to hear such representations if he were a judge. The minister would not be expected
to approach the matter with “an empty mind" but, in the words of the court, the
mind should “at least be ajar".
In Govindaraja Mudaliar v State of Tamil Nadu, the government decided to

nationalize road transport and appointed a committee to frame a scheme for this.
The Home Secretary was made a member of this committee. When the scheme was
finally published, objections were heard by the Home Secretary, but the scheme
was subsequently passed without any modifications. It was contended that the
hearing was vitiated by the rule against bias because the Secretary being a member
of the Committee that framed the scheme had already made up his mind about the
nationalization. The Court rejected this contention on the ground that the Secretary
did not finally determine any issue so as to foreclose his mind. He simply helped
the Government in formulating the scheme. Similarly, in Kondala Rao v.
APSRTC , the court did not quash the nationalization of road transport order of a
minister on the challenge that the same minister had presided over a meeting only a
few days earlier in which nationalization was favored. The court instead took the
view that the committee’s decision was not final and irrevocable, but merely a
policy decision.
The problem of bias arising out of preconceived notions
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The University, Delhi)
problem of bias arising from preconceived notions may have to be disposed of
as an inherent limitation of the administrative process. It is useless to accuse a
public officer of bias merely because he is predisposed in favor of some policy in
the larger interest of the public. As a wise man had once stated, “we are each
burdened with prejudice; against the poor or the rich, the smart or the slow, the
gaunt or the obese. It is natural to develop prejudices. It is noble to rise above
them."
SALIENT FEATURES OF CONSTITUTION OF INDIA
Salient Features of Indian Constitution
Originally having 395 Articles divided into 22 parts and 8 schedules, a lengthiest
constitution of the world with systematic elaboration on every topic. At present, it
contains 448 Articles with 12 schedules as a result of various amendments (101 till
so far, GST Amendment).
Longest written constitution: The constitution of India is said to be the

longest written constitution in the world because, it contains:
• Separate provisions for states and centre and their inter-relationship.
• The borrowed provisions from several sources and several other constitutions of
the world.
• The separate provisions for scheduled castes, scheduled tribes, women,
children, and backward regions.
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• It University,
contains the detailed list of individual Delhi)directive principles of state
rights,
policy and details of administration procedures which were laid down to make the
constitution an easy handy.
Unique blend of rigidity and flexibility: A Constitution may be called rigid or

flexible on the basis of its amending procedure.
• Some parts can be amended by ordinary law making procedure while certain
provisions can be amended only when a Bill for that purpose is passed in each
house of Parliament by a majority of the total membership of that house and by a
majority of not less than two-third of the members of that house present and
voting.
• Some amendments are also required to be ratified by the legislatures of not less
than one-half of the states before being presented to the President for assent.
India as a sovereign, socialist, secular, democratic and republic: India is

governed by its people through their representatives elected on the basis of
universal adult franchise (Government of the people, by the people and for
the people).
• India as a sovereign means it manages its internal and external affairs
freely without any external forces. However, it continues to be a member of
the commonwealth of Nation with the British Monarch as its head.
• The term socialist is added by the 42nd Amendment in 1976, means achievement of
socialist goals through democratic, evolutionary and non-violent means. However,
India follows the mixed model of socialist and capitalist economy.
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• By secular means it recognizes allUniversity,
religionsDelhi)
equally without having any
state religion which is a part of the basic structure.
• By republic means head of the state (President) is elected one and not
the monarch.
Parliamentary System of Government: Theoretically, Parliament controls the

functioning of the Council of Ministers; hence it is called Parliamentary system.
• Here executive is responsible to the legislature and remains in power as long as it
enjoys the confidence of the legislature.
• The President of India, who remains in office for five years, is the nominal, titular
or constitutional head (Executive).
• The Prime Minister is the real executive and head of the Council of Ministers
who is collectively responsible to the lower house (Lok Sabha).
Single Citizenship: Unlike Federation, where citizen enjoys dual citizenship of

both State and Union, India has a single citizenship provided by the union and
recognized by all the states across India.
Universal Adult Franchise: The Indian Constitution establishes political equality

in India through the method of universal adult franchise which functions on the
basis of ‘one person one vote’. Every Indian who is 18 years of age or above is
entitled to vote in the elections, irrespective of caste, sex, race, religion or status.
Independent and Integrated Judicial System: The judiciary system is kept free
from the influence of the executive and the legislature. As an integrated system,
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India has the Supreme Court as theUniversity,
apex court below which High Courts
Delhi) come.
The High Courts in turn supervise the lower courts.
Fundamental Rights, Fundamental Duties and Directive Principles of

State Policy: Fundamental Rights are not absolute but are subject to the
limitations which are expressly defined by the constitution itself and are
enforceable in the court of law.
• The DPSPs are the guidelines to be followed by the states regarding
governance and are not enforceable in the court of law.
• The Fundamental Duties, added by the 42nd Amendment are moral
conscience which ought to be followed by the Citizens.
A Federation with a strong centralizing tendency: India is an indestructible

Union with destructible states means it acquires a unitary character during the time
of emergency. Hence, some experts say it as a quasi federal in nature.
JBalancing Parliamentary supremacy with Judicial Review: An independent

judiciary with the power of judicial review is a prominent feature of our
constitution. The harmonization which our Constitution has effected between
Parliamentary Sovereignty and a written Constitution with a provision for Judicial
Review is an important achievement of the framers of our Constitution.
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JUDICIAL SYSTEMS IN INDIA University, Delhi)
 HIERARCHY AND JURISDICTION OF COURTS
The feature Indian judiciary system is its hierarchical structure of courts. There are
different levels of judiciary system in India empowered with distinct type of courts.
The courts are structured with very strong judiciary and hierarchical system as per
the powers bestowed upon them. This system is strong enough to make
limitation of court with its jurisdiction and exercise of the power. The Supreme
Court of India is placed at the top of the hierarchical position followed by High
Courts in the regional level and lower courts at micro level with the assignment of
power and exercising of the same for the people of India.
Supreme Court of India
Supreme Court of India is the highest level of court of Indian juridical

systemwhich was established as per Part V, Chapter IV of the Constitution of
India which endorses the concept of Supreme Court as the Federal Court to play
the role of the guardian of the esteemed constitution of India with the status of the
highest level of court in the status of appeal cases.
 Constitution Regulation
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As conferred by Articles 124 to 147 University, Delhi)Constituency, the jurisdiction
of Indian and
composition of the Supreme Court is being fixed. This court is primarily of the
status of appellate court. This court is accepting the appeals of cases which are
being heard in the High courts situated in different states and union territories with
dissatisfaction of related parties. This court also accepts writ petitions with the
suspected occurrence of activities which may infer about violation of human rights
and subsequent petitions are accepted to hear and judge the consequences of such
happenings.
These types of petitions are accepted under Article 32 of Indian constitution.

This article confers the right to ensure remedies through constitution. This court
also hears about such serious issues which need to be attended with immediate
attention.
 History
This court has started its operation since 28 th January 1950 with the inaugural
sitting, the day since when the constitution of independent India had been
effectively applicable. The court had already taken care of more than 24,000
judgments as per report of the Supreme Court.
 Structure and Application
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This court is comprised of the ChiefUniversity,
JusticeDelhi)
along with 30 other judgesto carry
on the operation of the court. The proceeding of the Supreme Court is being heard
only in the language of English. The Supreme Court is governed by the Supreme
Court Rules which was published in the year 1966.
The same had been fixed under the Article number 145 of the Constitution of India
to ensure the regulation of procedures and practices of the Supreme Court. This
article is passing through the process of upgrading with the presently enforced
Article as per the Supreme Court Rules, 2013.
High Court of India
 Constitution
High Courts are second Courts of Importance of the democracy of India.They

are run by Article 141 of the Constitution of India. They are governed by the
bindings conferred by the Supreme Court of India so far judgments and orders are
concerned. The Supreme Court of India is the highest level of courts and is
responsible for fixing the guidance to the High Courts set by precedence.
High courts are the types of courts which are instituted as the courts powered by
constitution with the effect of Article 214 Part IV Chapter V of the Indian
35
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University,
Constitution. There are 24 high courts in IndiaDelhi)
taking care of the regional juridical
system of India out of which Kolkata High Court is the oldest.
 Jurisdiction
These courts are mainly confined to the jurisdiction of state, group of states or
Union Territory. They are being empowered to govern the jurisdiction of lower
courts like family, civil and criminal courts with other different courts of the
districts. These courts are of the statute of principal civil courts so far originality of
jurisdiction is concerned in the related domain of the states and the other district
courts.
These courts are treated as subordinate to High Courts by status. But High Courts
are mainly exercising their jurisdiction related to civil or criminal domain if the
lower courts are proved incapable of exercising their power as per authorization
extended by law. These situations may be generated through the inability of
financial or territorial jurisdiction. There are specific areas in which only High
Courts can exercise the right for hearing like cases related to Company Law as it is
designated specially in a state or federal law.
But normally the high courts are involved in the appeals raised in the cases of
lower courts with the writ petitions as conferred in Article 226 of the Constitution
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of India. The area of writ petitions University,
is also theDelhi)
sole jurisdiction of high courts. The
jurisdiction of High Court is varying so far territorial jurisdiction is considered.
 Official structure and application
The appointment of the judges of High Courts are being executed by the
President of India with the consultation of the Chief Justice of India, the Chief
Justice of High Court and the Governor of the state or union territory.
Decision on the number of judges in High Court is mainly dictated considering the
higher number of either the average of organization of main cases for the last years
as per the average nationally calculated or the average rate of main cases disposed
per judge per year in the respective high court.
The high courts with handling of most of the cases of a particular area are provided
with the facility of permanent benches or branches of the court situated there only.
To serve the complainants of remote regions the establishment of circuit benches
had been made to facilitate the service with the schedule of operation as per the
occurrence of visit of the judge.
Lower Courts of India
 District Courts
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 Constitution University, Delhi)
The basis of structuring of district courts in India is mainly depending upon

the discretion of the state governments or the union territories.The structure of
those courts are mainly made considering several factors like the number of cases,
distribution of population, etc. Depending upon those factors the state government
takes the decision of numbers of District Courts to be in operation for single
district or clubbing together different adjacent districts.
Normally these types of courts exercise their power of juridical service in

district level. These courts are covered by the administrative power of the High
Courts under which the district courts are covered. The judgments of the district
courts are subject to review to the appellate jurisdiction of the respective high
court.
 Structure and Jurisdiction
The district courts are mainly run by the state government appointed district
judges. There are additional district judges and assistant district judges who are
there to share the additional load of the proceedings of District Courts. These
additional district judges have equal power like the district judges for the
jurisdiction area of any city which has got the status of metropolitan area as
conferred by the state government. These district courts have the additional
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University,over
jurisdictional authority of appeal handling Delhi)
the subordinate courts which are
there in the same district specifically in the domain of civil and criminal affairs.
The subordinate courts covering the civil cases, in this aspect are considered as
Junior Civil Judge Court, Principal Junior and Senior Civil Judge Court,
which are also known as Sub Courts, Subordinate Courts. All these courts are
treated with ascending orders. The subordinate courts covering the criminal cases
are Second Class Judicial Magistrate Court, First Class Judicial Magistrate
Court, and Chief Judicial Magistrate Court along with family courts which are
founded to deal with the issues related to disputes of matrimonial issues only. The
status of Principal Judge of family court is at par with the District Judge.
There are in total 351 district courts in operation out of which 342 are of states
while 9 are of union territories.
 Village Courts
 Constitution Structures and Features
The village courts are named as Lok Adalat or Nyaya Panchyat which means
the service of justice extended to the villagers of India. This is the system for
resolving disputes in micro level. The need of these courts is justified though the
Madras Village Court Act of 1888. This act is followed by the development
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post 1935 in different provinces, University,
which areDelhi)
re-termed as different states after the
independence of 1947.
This conceptual model had been started to be sued from the state of Gujarat
consisting of a judge and two assessors since 1970s. The Law Commission had
recommended in 1984 to form the Nyaya Panchayats in the rural areas with the
people of educational attainment. The latest development had been observed in
2008 through initiation of Gram Nyaylayas Act which had sponsored the concept
of installation of 5000 mobile courts throughout the country. These courts are
assigned to judge the petty cases related to civil and criminal offence which can
generate the penalty of up to 2 years imprisonment.
So far the available statistics of 2012 there are only 151 Gram Nyaylayas which
are functional in this big country which is far below the targeted figures of 5000
mobile courts. While trying to find the basic reasons for this non achievement, it
was found as financial constraints followed by shown reluctance by the lawyers,
respective government officials and police.
The Hierarchical Structure of Indian Courts
40
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University, Delhi)
41.

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Chanderprabhu Jain College of Higher

Paper Code : LLB (101)

Subject : LEGAL METHOD

Faculty Name: Ms. Sukanya Sharma

BASIC CONCEPTS OF INDIAN LEGAL SYSTEM

 COMMON LAW FOUNDTION

Historical development of English Common Law

Origin And Concept Of Rule Of Law

DICEY'S THEORY of Rule of Law consists of three main principles:

1. Absence of Arbitrary Power or Supremacy of Law: As per Dicey Rule of law

Common ingredients of Rule of Law are:

 a government bound by and ruled by law

Rule of law in modern era

"In proper sense rule of law implies a democratic system, a constitutional

-Legislature -Executive -Judiciary

The doctrine of separation of powers envisages a tripartite system. Powers are

Locke distinguished between what he called:

 Discontinuous legislative power

He included within ‘discontinuous legislative power’ the general rule-making

The theory of separation of powers signifies three formulations of structural

In England House of Commons control the executive. So far as judiciary is

Principle of Checks and Balances

The doctrine of separations of powers may be traced back to an earlier theory

c) It is impossible to take certain actions if this doctrine is accepted in this entirety.

In India, the doctrine of separation of powers has not been accorded a

“Indian Constitution has not indeed recognized the doctrine of separation of

In India, not only is there a functional overlapping but there is personnel

Judicial Opinion on the Doctrine of Separation of Powers

The first major judgment by the judiciary in relation to Doctrine of separation of

Later in I.C.GolakNath v State of Punjab, SubhaRao, C.J opined that “The

 PRINCIPLES OF NATURL JUSTICE

Principles of natural justice includes:

 Rule against bias: Bias may include:

 (c) Reasoned Decision

Again, in R. v. Secretary of State for the Environment, ex p. Brent London

In Govindaraja Mudaliar v State of Tamil Nadu, the government decided to

The problem of bias arising out of preconceived notions

SALIENT FEATURES OF CONSTITUTION OF INDIA

Salient Features of Indian Constitution

Longest written constitution: The constitution of India is said to be the

Unique blend of rigidity and flexibility: A Constitution may be called rigid or

India as a sovereign, socialist, secular, democratic and republic: India is

Parliamentary System of Government: Theoretically, Parliament controls the

Single Citizenship: Unlike Federation, where citizen enjoys dual citizenship of

Universal Adult Franchise: The Indian Constitution establishes political equality

Fundamental Rights, Fundamental Duties and Directive Principles of

A Federation with a strong centralizing tendency: India is an indestructible

JBalancing Parliamentary supremacy with Judicial Review: An independent

 HIERARCHY AND JURISDICTION OF COURTS

Supreme Court of India

Supreme Court of India is the highest level of court of Indian juridical

These types of petitions are accepted under Article 32 of Indian constitution.

 Structure and Application

High Court of India

High Courts are second Courts of Importance of the democracy of India.They

 Official structure and application

Lower Courts of India

The basis of structuring of district courts in India is mainly depending upon

Normally these types of courts exercise their power of juridical service in

 Structure and Jurisdiction

 Constitution Structures and Features

The Hierarchical Structure of Indian Courts

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